DPP v Basic
[2016] VSCA 99
•10 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0002
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DENNIS BASIC | Respondent |
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| JUDGES: | WEINBERG AP, REDLICH and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 April 2016 |
| DATE OF JUDGMENT: | 10 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 99 |
| JUDGMENT APPEALED FROM: | DPP v Basic [2015] VCC 1863 (Judge Cohen) |
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CRIMINAL LAW – Sentence – Crown appeal – Respondent convicted on first indictment of making explosive substance with intent to endanger life or cause really serious injury to property; knowingly possessing explosive substances for unlawful object; and possessing drug of dependence – Convicted on second indictment of prohibited person possessing firearm (eight charges); prohibited person possessing silencer; and possessing ammunition without licence and storing insecurely – Guilty pleas – Sentenced to 20 months’ imprisonment on first indictment and aggregate sentence of 18 months’ imprisonment with 12 month Community Correction Order (CCO) on second indictment – Cumulation – Total effective sentence 23 months’ imprisonment in combination with 12 month CCO – Possession of firearms for purpose of criminal activity – Berichon v The Queen (2013) 40 VR 419 applied – Sentence imposed on second indictment manifestly inadequate – Appeal allowed – CCO imposed below set aside – Substituted CCO of four years with 400 hours community service effective from date of original sentence.
CRIMINAL LAW – Sentence – CCO – whether appropriate to fix a sentence of imprisonment of just below 2 years in order to avoid the limitations of s 44(1) of the Sentencing Act 1991 – DPP v Grech [2016] VSCA 98 approved.
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| APPEARANCES: | Counsel | Solicitors |
| Crown | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
| Respondent | Mr O P Holdenson QC with Mr R W O’Neill | Dean Cole & Associates |
WEINBERG AP
REDLICH JA
FERGUSON JA:
On two separate dates in 2015, the respondent (now aged 36) pleaded guilty to a number of offences contained within two indictments, D1295356A.3 and D1295356B. On 14 December 2015, he was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation | |
| Indictment D1295356A.3 | |||||
| 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 | 18 months | Base | |
| 2 | Knowingly possess explosive substances for unlawful object contrary to s 317(4) of the Crimes Act 1958 | 5 years | 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 | 4 months | Nil | |
| Indictment D1295356B | |||||
| 1-7 & 9 | Prohibited person possess firearm contrary to s 5(1) Firearms Act 1996 | 1200 penalty units or 10 years | 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 | |||
| 10 | Possess ammunition without licence and store insecurely contrary to s 129A of the Firearms Act 1996 | 240 penalty units or 4 years | |||
| 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 Director of Public Prosecutions has appealed against the sentences imposed on each indictment. His notice of appeal contains three grounds:
(1)The aggregate sentence imposed on Indictment D1295353B is manifestly inadequate and reflects that the learned sentencing judge:
a)failed to have sufficient regard to the nature and gravity of the charges, in particular the number of firearms, their nature, condition and locations;
b)failed to sufficiently punish the respondent to an extent which is just in all of the circumstances; and
c)failed to sufficiently manifest general deterrence and denunciation.
(2)The order for accumulation of 3 months of the sentence imposed on Indictment D1295353B upon the sentences imposed on Indictment D1295356A.3 is manifestly inadequate and fails to reflect that the charges on Indictment D1295353B were founded upon separate and distinct offending.
(3)The sentence imposed on Charge 1 on Indictment D1295356A.3 is manifestly inadequate, and consequentially the total effective sentence on that Indictment is also manifestly inadequate. In particular, the sentence fails to sufficiently manifest general deterrence and denunciation, and culpability of the respondent for that offence.
Circumstances surrounding the charges contained in Indictment D1295356A.3
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:
(g) a loaded M27 .40 calibre Smith and Wesson semi-automatic handgun (located in the driver’s door storage space) (Charge 1);
(h) a black wallet containing the respondent’s identification cards and personal items (located in the driver’s door next to the handgun);
(i) a loaded magazine containing further ammunition for the handgun (located with the handgun in the driver’s door) (Charge 10);
(j) a gun case containing a 12 gauge Winchester Defender shotgun (located behind the passenger seat) (Charge 2);
(k) a red case containing 15 shot gun shell cartridges (Charge 10);
(l) two black balaclavas; and
(m) 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.
The judge’s sentencing remarks
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’[1] 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.
[1]DPP v Basic [2015] VCC 1863 (Judge Cohen), [20] (‘Reasons’).
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’.[2]
[2]Reasons [23].
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’.[3] 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.
[3]Reasons [ 35].
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’.[4] 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.
[4]Reasons [49].
The Director’s submissions
In ground 3 of his notice of appeal, the Director submitted that the sentence imposed in relation to the first explosives charge was manifestly inadequate. Consequently, the total effective sentence on that indictment was also manifestly inadequate. However, in oral argument before this Court that submission was barely pressed. In effect, it was all but formally abandoned.
The central thrust of the Director’s appeal concerned the aggregate sentence of 18 months’ imprisonment, in combination with a 12 month CCO, imposed in relation to the firearms charges, and the consequent order of only 3 months’ cumulation of this sentence on the sentences on the other indictment.
Had the Director so desired, the challenge to the three months’ cumulation between the two indictments could have been based upon what appears to have been an artificial constraint imposed upon the entire sentencing process. The trial judge might be thought to have endeavoured to compress the total effective sentence into a term of two years’ imprisonment or less, thereby enabling a CCO to be combined with the term of imprisonment imposed.
This Court has, in recent times, seen a number of examples of trial judges having imposed sentences of two years, or just below, as a ‘ploy’ to enable a combination sentence of a term of imprisonment and a CCO to be ordered.[5]
[5]See, for example, Sianas v DPP [2016] VSCA 84 as just the latest illustration of what has become a common occurrence.
This approach is inconsistent with the correct application of sentencing principle. It can result in sentences, including orders for cumulation, which do not adequately reflect the gravity of the offending or the offender’s total criminality.
This Court has also seen other contrivances used in an apparent attempt to circumvent the limitation created by s 44(1) of the Sentencing Act 1991 (‘the Act’), and the difficulty of reconciling that provision with s 11 of the Act. Thus, trial judges have, on occasion, refused to declare pre-sentence detention (‘PSD’), or full PSD, in accordance with s 18 of the Act so that the end result will be a sentence involving more than two years’ actual incarceration, coupled with a CCO of some years’ duration.
This circumvention, through the use of s 18 of the Act, of the requirement that any sentence of two years or more be accompanied by the fixing of a non-parole period (save in the limited circumstances set out in s 11 of the Act) has been criticised by this Court in Director of Public Prosecutions v Grech.[6]We endorse those criticisms.
[6][2016] VSCA 98.
Plainly, the CCO provisions are not working as intended. Putting to one side the question of policy addressed in Boulton v The Queen,[7] these provisions are distorting the sentencing process and producing artificial results. We would urge that the legislature give serious consideration to amending the relevant sections so as to avoid this consequence.
[7][2014] VSCA 342.
Nonetheless, the Director did not make any of these criticisms the subject of this appeal and, in particular, ground 2. Accordingly, it is unnecessary to say anything further regarding these matters.
We return then to ground 1 which formed the basis for the Director’s submission that the overall sentence was manifestly inadequate. As previously set out, the firearms charges included eight offences of being a prohibited person in possession of a firearm, one offence of being a prohibited person in possession of a silencer, and one offence of being in possession of a firearm without a licence and without storing ammunition properly.
It was submitted that the firearms offences were all extremely serious, and warranted a custodial sentence significantly greater than that which had been imposed. It was submitted that an aggregate sentence of 18 months’ imprisonment, in combination with a 12 month CCO, might perhaps have been appropriate had the respondent been found in possession of one or two firearms, but not where he was the custodian of a veritable arsenal.
It was further submitted that the term of imprisonment imposed in this case was entirely out of kilter with sentences imposed in what were said to be ‘comparable’ cases.
With regard to that latter submission, the Director first relied upon R v Henderson.[8] There, police had located a total of seven firearms in a rented storage facility. The maximum penalty for being a prohibited person in possession of an unregistered firearm was, at that time, 15 years’ imprisonment, as distinct from the ten year maximum that now applies. The offender was sentenced to four years’ imprisonment on each of the seven firearms charges. With orders for cumulation, the total effective sentence was six years’ imprisonment.
[8](2009) 22 VR 662 (‘Henderson’).
Next, the Director referred to Berichon v The Queen.[9] There, the offending included a charge of being a prohibited person in possession of an unregistered firearm, albeit that weapon was possessed for the specific purpose of implementing a plan to cause serious injury to a particular individual. A sentence of three years and six months’ imprisonment in respect of the single firearms charge was upheld by this Court.
[9](2013) 40 VR 490 (‘Berichon’).
The third of the cases upon which the Director relied was Powell v The Queen.[10]There, the offender was found to be in possession of an unloaded 12 gauge shotgun. He was also found in possession of an unloaded .22 calibre handgun which was, at it happened, incapable of being fired. No ammunition was located. On a ‘rolled up’ charge involving possession of both weapons by the respondent as a prohibited person, he was re-sentenced on appeal to 15 months’ imprisonment, only three months less than the aggregate sentence for all firearms offences imposed upon the present respondent.
[10][2015] VSCA 93 (‘Powell’).
The Director submitted that, in the present case, it was an aggravating feature of the firearms offences that three of the weapons were ready to hand. Moreover, two of those guns were particularly lethal, being semi-automatic, and loaded. One of those two weapons was a handgun located in the driver’s door of the utility, within easy reach. Another, a rifle, was located within an arm’s length of the respondent’s bed.
The Director submitted that, given that the weapons and ammunition found in the utility must have been placed there by the respondent after he rented that vehicle earlier that day, it was apparent that he had not, as he claimed, merely been storing them on behalf of the Hells Angels.
In that regard, the Director drew attention to the following remarks of the sentencing judge:
Although it is said you were storing the firearms for the motorcycle gang, I do not accept that your role was merely passive. You kept a semi-automatic rifle loaded near your bed. You had obviously placed two guns, with extra ammunition, into the vehicle you had hired only hours earlier, with one in the driver's door. I regard this quantity of firearms and ammunition, together with a separate silencer, and the fact that many of the firearms were kept loaded, as indicating a readiness for use, even if not all by you. Further, whether or not on someone else's orders, you had transferred two firearms into the vehicle to take with you when you next drove away, one loaded and in the driver’s side door. This reflects an immediacy to the intended use of these guns, which in my view takes this offence to a level of seriousness well above the lowest end of the potential range for possession of firearms.[11]
[11]Reasons [23].
The Director next referred to a distinction between different levels of offending in relation to firearms offences, best exemplified in the following passage from the judgment of Redlich JA in Berichon:[12]
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 and Armistead v The Queen. 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 unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence. 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. 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.[13]
[12](2013) 40 VR 490.
[13]Ibid 496 [26] (Redlich JA) (citations omitted).
The Director submitted that the respondent’s offences in the present case could only be described as falling within what Redlich JA had characterised as the ‘second category’. In support of that submission, the Director pointed to the sheer number of weapons that the respondent had in his possession; the fact that several of them were loaded and within easy reach; and the fact that the respondent was also found in possession of a quantity of illicit drugs. Importantly, it was significant in assessing the gravity of this offending that the respondent had been found in possession of a silencer as well as the various firearms and ammunition located. There could be no conceivable explanation for the possession of a silencer other than as part of a particularly sinister criminal enterprise.
Accordingly, the Director submitted that the judge had erred in dealing with this case as though it warranted a ‘low order of imprisonment’, that being appropriate to the first of Redlich JA’s categories in Berichon, rather than a ‘more substantial sentence’ which was appropriate for a ‘second category’ offence.[14]
[14]Ibid.
The Director drew attention to the fact that although an aggregate sentence under s 9 of the Act may have been entirely appropriate in respect of the multiple firearm offences, this was not a case involving a ‘rolled up count’. The respondent should have been sentenced, within the framework of an aggregate sentence, to much the same overall of term of imprisonment as he would have received had each charge been dealt with separately and orders forcumulation made.[15]
[15]R v Grossi (2008) 23 VR 500, 510 [40] (Redlich JA).
Finally, the Director submitted that the respondent’s criminal record militated against leniency, given the need for specific deterrence.
The respondent’s submissions
Senior counsel for the respondent relied upon the written submissions filed on behalf of his client to set out succinctly why the aggregate sentence and CCO imposed upon the firearms charges could not be said to be manifestly inadequate.
The particular passage in the respondent’s written submissions reads as follows:
a. the respondent had no prior convictions involving firearms or explosives;
b. the respondent did not have a history of sustained, entrenched or regular offending;
c. the respondent had no ‘underlying problems’ likely to increase the risk of future offending;
d. the respondent had the support of his parents and a group of longstanding friends from the Croatian community;
e. 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;
f. 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;
g. the respondent’s marriage had broken up shortly before the offending and his moving into the circle of the Hells Angels;
h.the respondent’s contact with his children was now by telephone only;
i. the respondent had fair prospects of rehabilitation that were in his own hands;
j. the respondent had pleaded guilty, and at an early stage in relation to the [Indictment D1295356B];
k. the pleas of guilty were of utilitarian value, particularly on [Indictment D1295356A.3] given that the matter was listed for a three-week trial; and
l. the pleas of guilty reflected some degree of remorse.[16]
[16]Citations omitted.
At least initially in the course of his oral submissions, senior counsel sought to challenge the Director’s contention that the respondent’s possession of this array of weapons should not be viewed as falling within the ‘second category’ as explained in Berichon.[17]
[17](2013) 40 VR 490.
However, sensibly and no doubt appreciating the difficulty of maintaining such an argument, he resiled somewhat from it. He then submitted that at the very least, the respondent’s moral culpability in respect of the firearms offences should be regarded as reduced since he must have been storing some, though perhaps not all, of these weapons on behalf of others. In addition, he submitted that possessing such weapons for ‘defensive’ purposes was intrinsically less culpable than possessing them with the intention of using them in the commission of criminal offences. It must be said that that particular argument appeared not to be pressed with any great enthusiasm. That was understandable.
More realistically, the main submission advanced on behalf of the respondent was that, in the somewhat unusual circumstances of this case, an aggregate sentence of 18 months’ imprisonment and a 12 month CCO for these firearms offences could not be said to be wholly outside the range. Nor could the order for cumulation between the two indictments be said to be too low.
In support of that submission, it was noted that the aggregate sentence, and the three month’s cumulation ordered in respect of it, were in fact a component of the 26 and a half months’ imprisonment that the respondent had served on remand before he came to be sentenced in respect of both indictments.
Senior counsel for the respondent also took issue with the Director’s reliance upon ‘comparable’ cases.[18]
[18]As previously indicated, the Director relied primarily upon three cases - Henderson (2009) 22 VR 662; Berichon (2013) 40 VR 490; and Powell [2015] VSCA 93 - to make good the submission that the aggregate sentence imposed in this case was not consistent with current sentencing practice for offending of this gravity.
Senior counsel for the respondent pointed out that two of the cases upon which the Director relied were decided at a time when s 5(1A) of the Firearms Act1996 had a maximum penalty of 15 years’ imprisonment, rather than the 10 year maximum introduced in 2012.
Senior counsel also drew attention to a number of sentences in firearms cases which he submitted demonstrated that a sentence of 18 months’ imprisonment combined with a 12 month CCO could not be said to be outside the range.[19]
[19]R v Graham (2007) 178 A Crim R 467 (18 months’ imprisonment with a non-parole period of nine months was said to be appropriate generally where possession of a firearm was found to be associated with ongoing criminal activity. The appellant was re-sentenced to seven months’ imprisonment on the possession charge characterised as being ‘at the very low end of seriousness of this type of offending’); and Armistead v The Queen [2011] VSCA 84 (a sentence of two years’ imprisonment was said to usually be reserved for cases where the firearm is in fact used in the commission of an offence, or possessed for a specific criminal purpose, or associated with ongoing criminal activity. The appellant was re-sentenced to six months’ imprisonment on the possession charge). The respondent also referred to R v Barca [2007] VSCA 167; Haddara v The Queen [2015] VSCA 158; and R v Afacan [2015] VSC 755.
Finally, senior counsel submitted that even were this Court to find that the sentence imposed for the firearms offences was manifestly inadequate, it should dismiss the appeal in the exercise of the residual discretion. In that regard, he relied upon an affidavit affirmed on 18 April 2016 by the respondent’s solicitor, Mr Dean Cole. That affidavit indicated that, by this stage, the respondent had completed 76 of his 100 hours of unpaid community work. Moreover, the respondent was now residing in Sunshine North, well away from where he had been living when he became involved with the Hells Angels, and since January 2016 had been employed as an Occupational Health and Safety Officer. The position was full time, and his employer was entirely satisfied with his performance. In addition, the respondent had engaged in voluntary work associated with a soccer club participating in the Victorian Sunday Amateur League. By all accounts, his rehabilitation was progressing extremely well.
As a last resort, senior counsel submitted that even if the gravity of this offending was too great to warrant the exercise of the residual discretion, there were powerful reasons why the respondent should not be returned to prison. Any increase in his sentence should be confined to varying the CCO to impose a longer period of supervision, and perhaps more stringent conditions.
Conclusion
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.
That leaves the question whether, as the Director submitted, the respondent should now be required to serve a further period of imprisonment, beyond the more than two years that he was in remand for these offences, or whether a more merciful adjustment may now be considered appropriate.
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.
At the same time, it is necessary to address the inadequacy of the original sentence. In our view, the public interest can best be served by allowing the Director’s appeal, making clear that the aggregate sentence imposed on the firearm offences was manifestly inadequate, and imposing a significantly more punitive CCO than the judge did below.
We would set aside the 12 month CCO. We would substitute for it a new CCO of four years’ duration, with 400 hours of community service to be performed. The new CCO is effective from 14 December 2015, being the date the respondent was originally sentenced. Accordingly, the new CCO includes the time already served, and the unpaid community work already performed, under the previous CCO.
In addition, we would, from this date, vary the condition that the respondent not contact or associate with any member or affiliate of any chapter of the Hells Angels. The condition should now require that he not contact or associate with any member or affiliate of any chapter of any motorcycle club from 10 May 2016 to the end date of the new CCO.
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.
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