DPP v Hurst & Ors

[2022] VCC 1640

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 22-01151

CR 22-00753 

CR 22-00742

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL JAMES HURST

TIMOTHY GORDON O'BRIEN

GARY STEVEN TATTERSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	21 September 2022
CASE MAY BE CITED AS:	DPP v Hurst & Ors
MEDIUM NEUTRAL CITATION:	[2022] VCC 1640

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused Hurst For the Accused O'Brien For the Accused Tatterson	Mr P. Pathmaraj Mr J. Lavery Ms M. Greener	Sarah Pratt & Associates Richard Davis & Associate Lawyers James Mapleston Barrister & Solicitor

HIS HONOUR:

1Joel James Hurst, you are now 38 years of age.  You have pleaded guilty to:

two charges of handling stolen goods;

eight charges of prohibited person possessing a firearm;

one charge of prohibited person possessing a silencer;

one charge of disposal of a trafficable quantity of firearms;

one charge of trafficking in a drug of dependence;

and one charge failing to comply with an order to provided information or assistance.

2Gary Steven Tatterson, you are 64 years of age, or 65 it might be.  You have pleaded guilty to:

two charges of possessing an unregistered Category A or B longarm;

one charge of disposal of a trafficable quantity of firearms;

on charge of cultivation of a narcotic plant, commercial quantity;

and one charge of destruction of evidence.

3Timothy Gordon O'Brien, you have pleaded guilty to:

two charges of theft;

one charge of prohibited person possess firearm;

and one charge of disposal of trafficable quantities of firearms.

4You have also, a number of you or all of you, I think, pleaded guilty to uplifted summary matters.  Because of the sheer number of charges and questions of totality and to try and avoid potential error, in each and every one of the uplifted charges I will simply convict and discharge.  The main thing, as I understand it, with offending whilst on bail and the provisions of the Bail Act, and they are put into place by that conviction and discharged, and it seems to me no useful purpose will be served by me imposing any other dispositions.  I will therefore deal only from now on with the indictments.

5Handling stolen goods carries 15 years.  Prohibited person possess a firearm carries 10 years.  Prohibited person possess a silencer carries eight years.  Disposal of a trafficable quantity of firearms carries 10 years, which is a surprisingly low maximum penalty but that is what it is.

6Trafficking in a drug of dependence carries 15 years, fail to comply with an order to provide information, five years.  Possess an unregistered Category A or B longarm, two years.  Cultivate a narcotic plant, commercial quantity, 25 years, destruction of evidence, five years, and theft, 10 years.  The charge of cultivate a narcotic plant must carry imprisonment unless there are exceptional circumstances or whatever the appropriate test is.  In this situation I will not be going down that path because it seems to me that insofar as Mr Tatterson is concerned a head sentence and a minimum term is the appropriate disposition.

7All the disposal and forfeiture orders are made and handed down.  As I have indicated, the Crown opening is Exhibit A, and it is not disputed.  I will simply refer to some parts of that in terms of getting the overall significance of all this.  A lot of that opening is about phone numbers and the like and I do not need to go into that in any detail.

8There were in this situation a number of co-accused, some of whom have been dealt with and some who have not, and I will be dealing with those later on, but a summary in general terms of the offending that is before me is this:  between 1 October 2019 and 12 November 2019 a farm in School Road, Trafalgar was burgled.  A shed was entered and firearms were taken.  That is an Anschutz 1400, 22 calibre bolt action rifle, and a BSA single 12 gauge shotgun, break open shotgun, were taken.  There was also a significant amount of ammunition.

9Approximately two months before that burglary you, Mr Hurst, had performed a day's work at that farm.  You had been sighted on the property on two occasions by the owner.  On 8 December a search warrant was executed on a
Mr Alexopoulos.  A search of his address found that Anschutz .22 calibre rifle.  It had been sawn off.  Also found a rifle scope and the rifle was fitted with a loaded magazine and it was on the floor between the couch and a television cabinet.  Also a Winchester subsonic box of .22 calibre ammunition was found.  His phone was then examined and a number of messages were found emanating from each of you, that is you, Mr Hurst, and Mr Alexopoulos.

10It is pretty clear from this conversation, which I will be paraphrasing, that you were well aware of what was going to happen with the firearm, at least that you were first selling.  It starts off with you asking Mr Alexopoulos, 'Can you do that thing today?'  He was going to talk about it with Joel, and you then said to him, 'Yeah, mate.  The thing you need to cut'.  You then said later, 'Okay, well, I can't hold it mate, sorry.  If someone else decides they can get it, well, I'll have to give it to them.  Sorry, sort of first in, best dressed sort of thing, and I've told three others.  So let me know when you can'.  It is pretty clear from that, you were aware of what was going to happen with the firearm and we will come to a moment in which one you were talking about.  It is pretty clear that you were at least indicating to Mr Alexopoulos that you had other buyers in the wings.  You then said later on, 'Yeah, I can get heaps of - I've got heaps of nails for it as well', which clearly relates to the ammunition.  You then sent in two images of the bolt action rimfire rifle.

11In any event, investigations commenced against you, Mr Hurst, and the sawn off rifle as it was found in the possession of Mr Alexopoulos was examined and found to be the same rifle that had been taken in the burglary, and clearly the same rifle that had been sold by you.  It would appear that Mr Alexopoulos has sawn it off but you knew it was going to happen.

12On 11 August 2021 you were in custody, as I understand it, and other covert operatives in custody with, or pretending to be in custody with you, began to talk to you.  You told them your phone number.  You told them that you would supply methamphetamine and you told them that you could access firearms, and during the course of your conversation with them you had said that you had access to firearms, as I have indicated, and including a 12 gauge shotgun which was in your possession and would appear to be the shotgun taken from the farm, and said you had a friend who had an old army rifle which used big bullets.  You also told them you could access brand new handguns in boxes.

13On 12 August one of the covert operatives met with you in the Yarragon area and you said that an associate at Pakenham had an 1885 military longarm and an associate was in possession of a 9 millimetre handgun and a
.22 calibre revolver, which were completely clean.  You also said that you were able to obtain a shotgun and .22 ammunition as your friend owns the Morwell gun store and believes you have a licence.  Whether that's true or not I do not know but, in any event, on 21 August you showed the covert operatives a .22 handgun wrapped in an old tea towel.  That gives rise to a prohibited person possess firearm.  The charges themselves are pretty self-evident, I think.  I do not need to go through all those in detail, and you took the covert to meet a
Mr Ketteringham.  Mr Ketteringham met the covert in your presence, as I understand it.  He said that he was in possession of numerous firearms, longarms, handguns, 303s, shotguns, 9 millimetre and a .22 handgun buried throughout the forest and he offered them a .303 calibre firearm for sale.  Everybody including you agreed and then Ketteringham left the area.  There was some to-ing and fro-ing and Mr Ketteringham from that point of time seemed to be known as, 'the plumber', for providing the “plumbing tools”.

14You endeavoured at that point in time that day for another supplier and I do not need to go through the details of all this but, in any event, you then had a conversation with the covert operatives with whom you discussed prices and agreed to supply four homemade firearms at $250 each.  When everyone returned to your address you received the homemade .22 handgun from the chicken coop and ammunition, attempted to fire the gun but it would not work.  You then explained to the covert operatives how to make the gun work that the firing pin needed to be filed down.  You then supplied that to them, again with ammunition.

15There were then other conversations with a Mr Mitchell I do not need to go through, but on 23 August 2021 you told the covert that you had a friend who might have a Mazda 303 long station wagon that wants 2500 for it and it comes with heaps of spare tyres, which is clearly a reference to a 303 with a lot of ammunition.  You said, 'I haven't seen it yet, not getting hopes up with this dude, a young farming dude.  It's out of the normal loop so it should be very clean and tidy'.  Whether that is Mr O'Brien I do not know.  In any event, conversations go on.  You talk about things being wrong with guns.  In any event, you took the convert operatives to Pakenham, where you introduced them to a Mr Cole.
Mr Cole produced an Enfield 1884 model rifle and you just demonstrated the lever action to the coverts.  Mr Cole then sold the rifle to them.  You had been in the possession of it, obviously, by just showing how it worked.  There was then a discussion between you and Mr Cole about a shotgun and there had been a seven shot shotgun with a side handle, and it was said that that was in the company of a person in custody, so you did not seem to be able to get it.

16On 1 September again messages between you and the covert operative.  You said to the covert operative, 'Hey, bro, so my brother might be keen to sell his Ford 12 cylinder long wagon, side by side exhaust, but it's arranged, so it is today', which is obviously referring to a double barrelled 12 gauge shotgun, and  you then forwarded two pictures of a sawn off shotgun.  So clearly at that point in time you were aware that that shotgun had been sawn off.  The difficulty that arises with all these matters, Mr Hurst, and I am not going to reopen the plea, is that a lot of these things were put on the basis I should not be working on the assumption that these were for illegal purposes and I am not going to go down that path.  I do not even know that it is necessary but clearly you know what a sawn-off shotgun is for.  It has no lawful purpose.  In any event, a deposit was paid and various conversations took place, which I  do not need to go into.

17On 4 September you attended at the rear of the property.  When they attended Yarragon you retrieved a side by side sawn off shotgun wrapped in a white coloured singlet.  So it is quite clear that you were fully aware of the nature of the firearm.  These all come into play in terms of the disposal charge.

18On 12 October you were met again at Yarragon by the coverts.  You went to a small garden shed in the property, got out one back Bakail brand side by side shotgun which was in a lock-away carry bag with four shotgun shells and you sold it to the operatives for $2250.  You told them at that point that you were buying amphetamine locally, that your supplier obtained a kilogram of methamphetamine, was selling bags for nine and a half thousand dollars.  It is a bit hard to work out just how - the size of the trafficking that you were involved in was obviously of significance so I am very careful not to sentence you to trafficking in a commercial quantity.  You told the operatives that
Mr Ketteringham had possession of six or more firearms including a .22 Magnum and a handgun.  However, you had not sighted those guns.

19Further conversations took place, which I do not think I need to go into, which are all related but, in any event, on late October 2021 you said to the operative, 'Hey, bro, I've got another wagon.  Well, a bit different.  It's got 303 for tyres.  Seven or eight in the boot.  Nice old wagon.  I'm pretty sure you can get it for 2K, maybe a bit less'.  'Yeah, mate, run.  No dramas.  It's off an old fellow', which would appear to be, from what I can gather from all this, Mr Tattersall, but it does not - I have also got to be careful to point out in this that comments made by one co-accused against another will not be interfering with the sentence other than giving an overall picture.

20In any event, in late October 2021 you, Mr Tatterson, provided Mr Hurst with a 303 long firearm.  It was not registered, and a box of 303 British Centrefire cartridges which added up to 13 rounds.

21Another meeting took place where you, in Phillip Street, Moe, apparently said to the cooperative that the covert - that there had been a falling out with
Mr Ketteringham, that you went to the rear of the premises and produced a 303 long arm rifle and a box of 303 ammunition.  You apparently attempted to contact a supplier, Gary, which I assume again was Mr Tattersall, by phone regarding a price.  The call was not answered and you stated to the covert that Gary, who is Mr Tattersall, was in possession of cut down
22 semi-automatic and you would enquire if he was willing to sell it.  You said that Gary was a 65 year old male who grows his own cannabis, which he'd drives to Queensland once a year, and you provided the phone number for the plumber, which of course was Mr Ketteringham.  I make it clear that those, or comments about Mr Tatterson will not interfere with the sentencing in relation to him.

22However, on 31 October you, Mr Hurst and Mr Tatterson, had the following conversation.  You, Mr Hurst, 'Do you want to part with another one?'  You,
Mr Tatterson, 'No, but I might be on to another one.  We're supposed to see a guy but he didn't show.  I'll put the shopping trolley out'.  That comment would seem to indicate that your version of events that these were all in some back shed that you had had access to accidentally is not particularly convincing I must say.

23But in any event

, conversations then took place between you, Mr Hurst, and

Mr O'Brien.  As a result of all that Mr O'Brien stole two firearms off his father and sold them to you.  That effectively gives rise to all the charges Mr O'Brien faces in this particular matter but he is in a very different league to the two of you and I will deal with those matters later on.

24

Again, in November, 11 November, you went with the covert to your address.  You produced a .22 calibre rifle with a black scope, another magazine clip containing ammunition, and sold that to the operatives.  You at that time also referred to the quote, 'old fellow', which is obviously, Mr Tatterson.  You had a .22 calibre long arm, which you were attempting to source.  You then mention matters about Mr Tatterson growing a lot of cannabis in the bush and various conversations like that.  Whether you were you just big noting yourself, I do not know but I will not hold that against

Mr Tatterson.

25

On 12 November 2021 there was a phone call from Mr Tatterson to you.

Mr Tatterson, 'You know, old mate up the road, how many of them do you reckon he'd want?'  You, Mr Hurst, 'Oh, as many as you can get a hold of'.  You, Mr Tatterson, 'That's what l thought.  Righto, I've got it happening, son'.  You, Mr Hurst, 'Good, awesome'.  Later on messages were exchanged where you, Mr Tatterson, said to Mr Hurst, 'Maybe two tomorrow'.

26

On the 15th that had got up to three.  Everyone is still on board.  On

19 November you, Mr Tatterson, had the following conversation with Mr Hurst.  Mr Hurst, 'You still right for meeting?'  You, Mr Tatterson, 'Yeah, all good.  One of them has changed'.  'Oh, yeah'.  'Yeah, yeah, 12 gauge'.  You, Mr Hurst, 'That's okay.  Even better'.  You, Mr Tatterson, 'Can drop them off tonight'.  On the 19th you, Mr Tatterson, provided Mr Hurst with a single barrelled 12 gauge shotgun, a .22 calibre single shot Lithgow rifle, and a .22 calibre modified Omark rifle scope.  It is my understanding that Omark rifle that was supplied to you,

Mr Hurst, was sawn off and had a silencer attached to it.  That can hardly be for a lawful purpose.  In any event, that forms part of the charge.  Indeed, when you are talking on 16 November to the covert, the covert says to you, 'Hey, bro, these cars got more power'.  Sorry, you already told him he could come down Friday afternoon with four cars for him.  You then said to the covert, 'No, sorry, bro.  Same size but take 10 tyres at a time', 'And one got a quiet exhaust on front to make it super quiet'.  Well, that is obviously referring to a silencer.  You then sold those firearms to coverts, including the .22 calibre modified that is shortened and fitted with a suppressor Omark rifle and a 10 shot magazine.

27Insofar as the drug trafficking is concerned other than that it is significantly another serious example of trafficking, I do not propose to go through all that in detail.  It is a situation here where the most serious charge, in my view, is the disposal of the firearms and an appropriate  sentence will be imposed on the trafficking of the amphetamine and some of it will be cumulative on this other sentence.

28Various searches were conducted.  You, Mr Hurst, refused or failed to provided assistance regarding access to your electronic device.  That will be concurrent.  I am not going to buy into all that.  Mr Ketteringham was searched.  I understand he is fighting his matters out.  Mr Cole was dealt with.  He received six months in the Magistrates' Court for a number of charges involving firearms. My understanding from the Bar table is that that was time served.  So I do not know what difference that really makes in all this situation.  Mr O'Brien was searched.  He made full admissions and that is very much to his credit.

29

Mr Tatterson's place was searched.  In the shed out the back were found shotgun cartridges and other cartridges.  In the course of that it is said that

Mr Tatterson broke his mobile phone so police could not get to it.  I just make that totally concurrent.  Somewhat concerningly, bearing mind what Mr Hurst has said about Mr Tatterson previously, there were two motion detection bush cameras found in the shed, which would tend to suggest crops, but in these circumstances I will work on the basis he has had some interest in flora or fauna or so.  In any event, when the premises were searched a significant number of cannabis crops were found.

30

There were 186 plants, which I think in your situation, to be fair to you,

Mr Tatterson, is very misleading.  That added up to 2.83 kilograms, and that is wet.  The commercial quantity of cannabis is 25 kilograms.  So it is only a tenth of that.  So insofar as commercial quantity is concerned I am aware that it has to be gaol but it will be an appropriate sentence but only some of that will be cumulative upon the charges that you face.  Otherwise, as I have already indicated, all the summary matters will be simply convict and discharge.  So that is the, in very short compass or as short a compass as I can do, the background of all this.  I am sure there is hundreds of messages I am not privy to but it is clearly not some one-off incident.  The naivety with which it was put to me during the course of the pleas would seem to be non-evident.  It is quite clear whether you were trafficking in particular days or not or what was happening between the man of the Greek name and when the coverts became involved I have got no idea, but certainly by that stage, when you were dealing with the coverts, Mr Hurst, you were dealing in running offences, essentially the business of procuring firearms and you, Mr Tatterson, I think were far more involved than you are conceding.  However, I only sentence you on what there is before me.

31There were a number of factors in this which I take into account in respect of all of you.  I have outlined the penalties.  It is trite to say that the matters are serious and require general and specific deterrence as well as denunciation and appropriate punishment.  The prevalence of firearms and the dangers that they can do, and you should know that, Mr Hurst, you have been shot yourself, in the community is well known and it seems to me general deterrence has to play a very significant part in all this.  There was no victim impact statement.  None of you have to worry about that.  All the guns were recovered or never in fact left apart from that first one, Mr Hurst had sold.  All the guns did not actually get into the public domain, so the actual danger did not exist, but that was not because of your will, Mr Hurst.  You were trying to sell them to other criminals who had met you and you had sort of met in the cells.  I think whilst I am aware of the decision that was put to me, I think you were a very willing participant.  It was put that the coverts invited you to sell guns.  It is quite clear that you offered to provide them for them and then went on a very busy escapade of finding guns for them and seeking them out.

32You all have prior convictions of various significance.  You, Mr Hurst, have one for possession of a longarm, which is of concern.  You, Mr Tatterson, do not have that sort of prior and neither do you, Mr O'Brien.  You, Mr Tatterson, your criminal history tends to support what was put to me that you grow cannabis essentially for your own use.  From what I can gather, there is no sign of enrichment.  So I tend to find that the matters said about you by Mr Hurst are probably braggadocio, as the Italians would say.

33Each of you pleaded guilty at a relatively early stage.  Each of you must get the benefit of that.  I accept to a certain degree at least that there is remorse present with each of you and obviously each of you must get the utilitarian benefit of those pleas of guilty.  Trials such as this, because of the nature of the evidence, take a long time to run and become complicated and it has clearly been a saving to the public purse.  The sentences that I impose are imposed in the time of Worboyes and there must be a significant discount for that.  I am aware that you, Mr Tatterson, and you, Mr Hurst, have undergone something in the order of 300 days each now in COVID conditions.  Obviously allowance will be made for that, as I understand it, later on by the authorities but that is no concern of mine.  I take into account the circumstances in which you had to undergo those sentences.

34In the case of each of you gaol is very much on the cards and clearly in this case of you, in fact each of you have now done a period of time in custody, albeit you, Mr O'Brien, have only done 19 days.

35

I then turn to matters personal.  I will be doing this in fairly short compass.  I am not going to go through your priors, Mr Hurst, there are a significant number of them.  What has been said, you also have filed on your behalf a report from

Mr Cunningham and a report from Ms Jackson, clinical psychologist.  I understand counsel's submissions about how long the transferring of the firearms or disposal of the trafficable quantity took, but it is a charge over

12 months and, in any event, it went for three and probably would have continued indefinitely.  I take into account the principles contained and were read out to me in Carter.  I do not know if they are of great assistance here.  As Carter says, they could be of minimal value, and what I will also simply say is that you were not coerced into anything and were clearly a very willing participant.

36

Insofar as your background is concerned, which I will come to shortly,

Ms Jackson opines that your background has caused you to develop in maladaptive ways to manage the impact of trauma.  That has resulted in mental health, substance abuse problems and antisocial behaviours, and I take that into account in this situation.  I take into account, as I have already indicated, the impact of custody on you in these days of COVID.  I also take into account that you have two daughters who are not travelling well with you in custody.  That does not give rise to mercy but it certainly means that it is something you are aware of whilst you are in custody and will continue to be in custody, and I take that into account.

37You, I am told, are still motivated to be an influence for your children, but the facts you have been served with a firearm prohibitions order is just a consequence of your offending and it is not a mitigatory matter.  Since you have been in custody, and I have seen these certificates, you have completed a course in tackling ice addiction and I accept that that is the case.  I would accept that being in gaol for this long has been a salutary experience and you have worked in woodwork every weekday  for the last six months whilst the and are completing certificates.  You are clearly in gaol, doing the best you can.

38Your background is that you were 35 at the time, 38 as I understand it, now.  You were raised in Trafalgar with a younger brother and two older half-brothers.  Your parents separated.  Your father was an alcoholic.  Your older half-brother, you said, tortured and beat you.  Your mother could not cope with the stress and would regularly leave the home. She would drive away when you were being belted by your brother and do nothing about it.  In any event, at the age of 14 you were sent to live with your father.  He was largely transient.  You state that you were mainly raised around different pubs.  You then rented your own accommodation before moving to live with partners over a period of time.  You then had a couple of marriages.  You married Hayley.  You two have two children aged six and three and you lived and worked in Western Australia.  Following the birth of your older child you were made redundant and returned to Victoria.  The relationship then ended.  As I understand it, you have both endeavoured to keep at least the parenting alive.  What is of interest is that in that period of time or number of years that you spent in Western Australia your offending seemed to cease, so clearly you do have the capacity to be productive.  You went to school in Trafalgar and went to a secondary college.  It has been described to me as being for children who were not travelling well.  You were shot in the shoulder in 2018.  I am not even going to ask what that was about and the bullet continues to be lodged in your shoulder, and a year after that you were stabbed.  These are all part and parcel of the trades that you were engaging in, as what might be described as business overheads.

39In any event, your profile, according to Cunningham, was consistent with individuals, an individual suffering from significant depression and anxiety.  Symptoms of trauma were evident and he said that you have a tendency towards social avoidance, introversion and of being persecuted by others.  You told him that your children were the only sparks in your life.  I take all those matters into account.  Your childhood is certainly not one to be envied and as best I can, I give proper consideration to it in coming to an appropriate disposition.

40I then have the report of Ms Jackson.  She indicates that in her view you suffer from post-traumatic stress disorder and I accept that and take that into account.  She points out you received a number of injuries when you were a child from your brother, and again I have accepted that.  She again repeats a major depressive disorder and I accept that you do have mental difficulties in that regard and to a certain extent at least Limbs 5 and 6 of Verdins come into play.  One concern is that you did tell Ms Jackson that her report says, 'In discussing the firearm and drug charges with Mr Hurst he reported that when he was in custody he was approached by too many later undercover operatives.  According to Mr Hurst they befriended him, they gave him a lift to his home following his release, they stayed in touch, they asked him to help them by methamphetamines and later guns.  Mr Hurst said he was in a vulnerable position.  He had relapsed again.  He was anxious to finance his drug use.  He claims he had no prior involvement in the purchasing or selling of firearms'.  That is clearly not true.

41Insofar as Alexopoulos is concerned and the phone calls around about that time, whether you were just trying to drive up the price for Mr Alexopoulos or not but clearly some months prior to you ever meeting the coverts, you were dealing with at least one firearm, and that is part of the charge against you.

42I take into account the references that were tendered on your behalf.  That is by your wife, Hayley, and it is a reference to her credit as much as it is to yours.  I understand the report from the primary school about the children but that is not a matter I can take into account other than in the way that I described, and it goes from there.

43

In any event, in the end that is what it comes down to.  As with Mr Tatterson, there is an element and I am not being critical of this, but there is an element of duplicity and double punishment in all this so I will endeavour to make the actual sentence when I do impose it in a few minutes as simple as possible.  There has to be an element of cumulation in all this but I will try and take into account the principles of totality and endeavour, as best I can, for it not to be a crushing sentence.  The prospects of your rehabilitation and the risk of re-offending, I think, are really up to you and will be a matter between you and the

Parole Board.

44You, Mr Tatterson, are now 65 years of age and that is of real significance and sets you apart for a start as from Mr Hurst.  Your prior convictions are not as concerning as those of Mr Hurst and, indeed, would tend to confirm what your counsel said to me in respect of your background.  You played a role in this which is obvious from even the very short passages that I read out, whether you had those guns already from somebody else in the back shed or whether you were actively sourcing arms, a proposition I do not propose to make any findings on.  The suspicions are high that you were finding these guns rather than already having them in your possession.  I will not sentence on that basis.  I do not see any need to.

45You, as with Mr Hurst, have now been in custody for some 300 days.  Insofar as the commercial quantity is concerned, as I have indicated, I work on the weight as the real problem here, not so much the number.  They are all very small plants.  I can clearly understand that.  You presently live alone in a rental property in Morwell.  You have worked as a professional fisherman.  A workplace accident in 2014 left you unable to work and you have been on a disability support pension.  You have a very close relationship with your daughter, Casey-Jo, and I apologise if I am pronouncing that wrongly, and your 16 month old granddaughter.  They live approximately 35 kilometres away from your home.

46I have taken into account the reference, and a very powerful reference that your daughter has placed on your behalf, and there is also another reference which I will refer to in a moment.  You have had very serious health issues, which I take very much into account in terms of your being incarcerated.  There is a letter from Dr Michael Collins, which I obviously accept.  He reports mood disturbance, anxiety, depression, post-traumatic stress disorder from childhood trauma, kidney stones, removal of benign lung mass, arterial fibrillation, there are a number of comorbidities, including emphysema, chronic back pain and difficulties with hearing.  In May 2022 it was confirmed that there was blood contained in a stool sample and you were supposed to be given a colonoscopy.  However, in custody that has been unable to happen.  You do have family history of colon cancer.  I can understand it is a very anxious and worrying situation for you to be in, and I take that into account.

47I also accept from what has been said to me that your physical and mental health problems are exacerbated whilst in custody and again, I take those matters into account.  You had colonic polyps removed in 2021, 2018 and 2014 and, indeed, your grandfather passed away from colon cancer.  So I am fully aware of those matters.  I'm, as I say, sceptical of how you say you came across these guns.  We do not need to go down that path.

48It seems clear from the material that you have been a - well, a silly word to use, but behaved yourself in custody.  You are described by Justice Health as, 'Quite pleasant and willing to engage, calm, understanding and cooperative'.  You have been compliant with your medication.  You have not got yourself into arguments or incidents with fellow prisoners or any officers and you have basically kept your head down and done the right thing.

49You have had in the past suicidal ideation.  It is hoped the matters of your daughter and stepson, as I understand it, that will not come to pass. You have said to Justice Health that you, 'Feel as though you've lost everything you've worked for, coming into prison for the first time at 63'.  That is a pretty sad situation but it is the reality of it.

50Your prospects for rehabilitation simply - I am not too much worried about the cannabis, that you are using that yourself, and I do accept that but if you are going to get yourself involved with firearms and the like this will happen again, and you have really got no one to blame but yourself.  I am aware of the situation in Boulton and I have discussed this with your counsel the other day.  I think that it is serious offending and I think in your particular situation I will be giving you an opportunity earlier of parole than would otherwise be there's situation and may perhaps even generously early, but that is the way it is.

51I do not need to go into institutionalisation or anything along those lines.  What then occurs in your situation is that you too have been doing certificates in gaol and that is very much to your credit.  There is also then the character references that were tendered on your behalf and there is one from a Mr Williams, who says that - describes you in good terms.  There is one from your daughter who says the very good things you have done from a social sense over the years.  I understand you have got the priors for smoking and using cannabis and the like but she says that you have always been a hard and dedicated worker, that you are somebody who would always do things for others, that you had helped people living in Narracan, found work for backpackers, helped children as they became adults, helped people with mental health issues, and your house has always been a haven not only for your daughter, as she said, but for others, and being from the country myself, I understand the nature of that in a place like Narracan.  She describes the health complexities that you have and the health complexities of people that you have supported.  Whether you are making a CBD or not is another matter, I will not go down that path.

52But in any event, upon your release she is able to, as I understand it, able to provided accommodation for you with proper care.  You have got a stepson and a 13 month old daughter to assist in the care of, and that home would be central to services for your being able to access medical and psychologically, including the GP I have already - whose report I have already referred to.

53So the prospects of your rehabilitation should be good, I think.  The risk of you re-offending insofar as cannabis is concerned, I have got no idea, but in terms of firearms I would like to think that it is very limited.  I have then also got the reference from your stepson, as I understand it, and he said that he was assessed as your stepson from the time that he was eight and it was during that time that his sister, Casey, was born.  He then says, 'As an adult he now understands the sometimes overwhelming and complicated task of being a stepfather.  I can say with certainty what a fantastic job you Gary did doing exactly that in my life.  He was a supportive role model, always about outdoor activities, like crayfishing, ferreting for rabbits and especially Australian rules football'.  I have to admit a certain understanding and compassion for somebody who is interested in those in a country town, but be that as it may, I am prepared to accept on this material that other than this lunacy that you engaged in, in your early 60s, you have otherwise been a pretty good citizen throughout your community and the like.  I think that you are entitled to call that into account.  That does not in any way, shape or form derogate, though, from the seriousness of putting firearms out into the public.  You must have been aware that there was a silencer on that shortened firearm and this just simply cannot happen again and others must be deterred from doing that.

54You, Mr O'Brien, in my view, are in a different situation.  You have had the least priors. You are now 35 years of age.  Your prior convictions just involve a fine and a without conviction good behaviour bond.  I accept at the time this occurred you were undergoing mental stress.  I think, as I understand, it was a short period after a relationship breakdown when this all started to commence.  You were using drugs and you got yourself somehow or other wrapped up in all this.  I think I said 19 days before.  I think it is 13 days PSD, but in any event, you grew up as the second eldest of four children.  You have a good relationship with your family.  Your father is a milk tanker driver.  Your mother had home duties and also has a shop.  Your family has always lived in Gippsland.  You are close to your parents and you attended Shady Creek Primary School, Traf high until Year 10. You did an apprenticeship as a builder.  You were good at football and basketball and as a child you did pretty well.  In 2009 you moved to Warragul with your partner, Ms Sobert, and lived there with your two sons until separation in 2021 and it was after that, that this offending occurs.

55The circumstances of your offending are pretty ordinary, to be perfectly frank.  In that situation to go and take the rifles of your father and sell them into those circumstances, it was put to me by your counsel, there is no victim impact statement involved in all this but it is a pretty ordinary thing to drag him into all this.  He has then got to go down to a police station and say to them, 'My son pinched them'.  So essentially your father has to say that - put you in as guilty of selling a traffickable quantity of firearms, and that is pretty ordinary, of not pretty ordinary, that is very ordinary in itself and certainly does not amuse me.

56But in any event, since you have been released on bail you have done the CISP program, had the report of CISP, which says by and large you have complied with all that, and you have done pretty well in that time.  It was indicated that you had completed the matters that they wished to deal with.  Your attendance record was good.  As I understand, it is said now you have not used for some nine months or something along those lines but you still do have cravings for drugs on occasion.  You have had a lengthy engagement with a psychologist, Mr Redman.  You have engaged with other psychologists including Ms Dolan, and you have done your best, I accept, in these circumstances to comply with everything they have indicated and get yourself back on track.  I am told, and I will accept this from the Bar table, that at the present time you are running your own business, which your father purchased for you in terms of mowing lawns.  Your parents are still in a situation where they are still very supportive of you and I think that in this situation you are a very lucky man that that is the case and, indeed, if you were to reoffend in any way, shape or form like this there will be such a slap in your face for your parents it will just be an absolute disgrace and I trust that you have got enough brains or enough social conscience and family conscience to know that, but you are in a different situation to the others.  The amount of firearms that you sold were not sourced from an unlawful purpose, unlike Mr Hurst and Mr Tatterson's were.  A normal, single bolt action 22 is still dangerous but at the - I think, I would have thought, lowest end of a trafficable quantity of firearms.

57You have now done 13 days in custody for all this and I think that that coupled with a significant community corrections order is sufficient.  The prospects of your rehabilitation should be good.  The risk of you reoffending in this way, one would hope, would be nil.  As with Mr Tatterson, you have got a lot going for you now that you are not going in and I just simply hope that you comply.  In any event, that is, as an indicated for the plea, I will not only write this out and more or less this has been done as extempore comments but I think it sufficiently outlines what this is all about, and I then need to pass sentence in relation to each.

58I have been through this about four times, gentlemen, and Ms Greener, but I just appreciate if people could follow it. Perhaps Mr Lou might do that.  So insofar as Mr Hurst is concerned, Charge 1, 18 months; Charge 2, 3, 4, 5, 6, 7, 8 and 9, an aggregate 24 months.  I will indicate that totality and the like have come into play here.  Were it not for the disposal charge, that 24 months would be significantly higher if that charge was not there.  Charge 10, 12 months.  Charge 11, four years.  Charge 12, three years.  Charge 13, 18 months concurrent.  Charge 14, three months concurrent.

59I direct that six months of the sentence imposed on Charge 1, six months of the aggregate sentence imposed on Charges 2 to 9 inclusive, six months of the sentence imposed on Charge 10, being the silencer, and 18 months of the sentence imposed on Charge 12 be served cumulatively upon each other and upon the sentence imposed on Charge 11.  That gives a total effective head sentence of seven years.  I direct that you serve a minimum term of four and a half years before becoming eligible for parole, and I direct that 300 days be reckoned as having been served under this sentence.

60In these COVID times, and bearing in mind the nature of the plea and the utilitarian benefit, I say that for the appearance of s6AAA, but for your plea of guilty you would have been sentenced to be imprisoned for a period of 11 years with a minimum term of eight.

61There are no other orders I need to make in respect to Mr Hurst?

62MR O'DOHERTY:  No.

63HIS HONOUR:  No, all right.  Mr Tatterson, on Charges 1 and 2 an aggregate of six months concurrent. On Charge 3, 18 months.  On Charge 4, six months.  On Charge 5, two months concurrent.

64

I direct that three months of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 3.  That gives a total effective head sentence of 21 months.  I direct that you serve a minimum term of

14 months before becoming eligible for parole.

65Pursuant to s6AAA I say that in these circumstances but for your plea of guilty I would have sentenced you to be imprisoned for a period of three and a half years with a minimum term of two.

66I direct that 300 days be reckoned as having been served under this sentence.  So far as that is concerned what happens next is up to the authorities.

67Insofar as you are concerned, Mr O'Brien, bearing in mind what you have done with CISP and the considerable parental support that you have got, you are sentenced to an aggregate 13 days on all four charges to be followed by a three year CCO.  I have had you assessed and you have been found to be acceptable, with 300 work hours and the conditions outlined in that CCO report, which are the community work, as I have indicated, treatment and rehabilitation for drugs and treatment and rehabilitation for mental health.  In fact no, sorry, that is to be 250 hours.  I direct that any time spent doing programs is to be deducted or can be deducted from that 250 hours and it will be for three years.

68Are there any other orders I have to make in respect to Mr Tatterson or - - -

69COUNSEL:  No, Your Honour.

70

HIS HONOUR:  All right.  Or, sorry, and declare the 13 days served, yes.  So before you sign this you understand there are 250 work hours.  You have got the programs for three years.  If you commit another offence involving this sort of thing or do not do the work hours and you get back before me where you have been re-sentenced for trafficking firearms, you are going in, all right, and you heard what has happened to Mr Tatterson, you heard what happens to

Mr Hurst, all right.  It will not be funny so you repay your parents for the probably ridiculous probably, amount of time they have put into trying to help you.  Yes, so sign that if you understand the conditions?

71All right, so there are no orders I need to make in respect of anybody?  All right.

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