DPP v Spur

[2018] VCC 1709

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

AT BALLARAT
CRIMINAL JURISDICTION

CR-18-01611

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEITH SPURR

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	23 October 2018
CASE MAY BE CITED AS:	DPP v SPURR
MEDIUM NEUTRAL CITATION:	[2018] VCC 1709

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs
For the Accused	Mr L. Gwynn

HER HONOUR:

1Keith Spurr, you have pleaded guilty before me to one charge of theft of a firearm and one charge of shortening a barrel of a longarm.  The facts underlying your offending are as follows.

2In about September 2017 you were living with your parents at their property in Ballan in a bungalow directly behind the house.  Your father, Phillip Spurr, is a licensed firearms holder and owns a number of registered firearms, which were stored in a metal cabinet in the garage close to the house secured by two padlocks.

3On 1 January 2018 your parents went on holiday to Tasmania, leaving you at home on your own.  Your father asked your sister's partner, Mark de Jonge, and Aaron Habblebourg to drop in to check on you and the property.  Between
1 and 8 January 2018 you breached the metal cabinet storing the firearms using an angle grinder and removed the guns, one of which was a double-barrel shotgun.  You then used an angle grinder to cut off most of the barrel and most of the stock of the gun.  Those actions underlie Charge 1 on the indictment, theft of a firearm, and Charge 2, shortening a barrel of a firearm.

4Mr de Jonge went to the property on 8 January and into the garage to work on his car, when he noticed that this gun safe had been tampered with.  He opened it and found a piece of the stock and barrel of the shotgun which had been sawn off.  He could not find that shotgun, but found a .22 rifle in the tray of your ute.  You were not home at that time.  He then located all of Mr Phillip Spurr's guns apart from the shotgun and one other rifle, and contacted your sister Caroline to tell her what had occurred.

5The two of them agreed that Mr de Jonge should remove the guns from the property.  He put them in his car and also called your father.  Mr Phillip Spurr told Mr De Jonge to round up as many guns as he could and take them to the police station.  You returned to the property a short time later and Mr de Jonge asked you where the shotgun was, and you replied by saying it was your father's fault for not trusting you with keys to the gun safe.

6Your sister Caroline arrived soon after, then she and Mr de Jonge took you out to the gun shed and confronted you about the empty gun safe.  You again said your father should not have hidden the keys, the bolts or gun ammunitions. 
Mr de Jonge and Caroline then left the premises and met up with Aaron Habblebourg, to discuss the situation.  Both Mr Habblebourg and Mr de Jonge agreed they would go back to the property and try and find the missing shotgun.

7They approached you there.  You told them "Go away", and tried to close the door to the bungalow, but Mr Habblebourg put his foot in the door to prevent it from closing.  There was a short wrestle between you and Mr Habblebourg before he and Mr de Jonge went into the bungalow.  They again asked you where the shotgun was, and you told them you had buried it and you would get $2,000 for it.

8Mr de Jonge and Mr Habblebourg then left the premises and went to the Ballan police station where they gave the guns to police and reported the matter.  Police attended the property the next day.  You were not there but a search of the bungalow located another rifle from the cabinet next to the bed.  They also located a quantity of ammunition, both the rifle and ammunition being insecurely stored.  You have never held a firearms license.

9You also on this plea, pleaded guilty to two summary charges, one being a summary offence of being a non-prohibited person possessing a firearm, and possessing ammunition without a license.  You were located by police the day after that, on 10 January in your bungalow, where you were arrested and taken for interview.

10You admitted the gun safe had been opened, but replied, "No comment" when asked how that happened.  You said that you went to grab a gun and saw that the keys were not in the normal place, denied bearing the gun, and said you did not know where the shotgun was.  You admitted to shortening the shotgun because you thought it would be funny to see your father shoot rabbits with it sawn off, and that you were potentially trying to spite your father.

11The offending shotgun was handed into police by yourself on 2 May 2018.  The maximum penalty for theft of a firearm is 1800 penalty units, or 15 years' imprisonment.  The maximum penalty for shortening the barrel of a firearm is 240 penalty units, or four years' imprisonment.  The maximum penalty for possessing a Category A firearm without a license is two years' imprisonment, or 120 penalty units, whilst the maximum penalty for possessing cartridge ammunition without a license is 40 penalty units.

12I now turn to your personal circumstances.  You are 25 years of age, the third of three children born to your parents.  You have two older sisters.  No member of your family has ever been in trouble with police, and indeed you have no prior convictions.  Your father works as a bus driver, and your mother and both your sisters work in childcare.

13You grew up in the Ballan district and had an unremarkable childhood, until you were about 13 when involved in a serious motor vehicle accident, and you reported to Pamela Matthews, psychologist, whose report was tendered on the plea, that following this you had some difficulties in concentration and with your school work. You appear to have never undergone a neuropsychological assessment, but there appears to be some hint of some possible acquired brain injury.  Following this time, it appears you were a depressed and anxious teenager, although fairly stoic.  It was not particularly noticed by your parents.  You left school at the end of Year 10, you then undertook casual jobs and then completed two years of an auto-electrician's apprenticeship, which ended when the employer moved his premises to Melbourne.  You then worked for Autobarn, installing radios and CD players in cars.  That business went broke, and you then began working on your own small business in this way.

14Along the way, you moved out of home and were involved in a long-term relationship, which began when you were 16, with a young woman named Katherine, with whom you were involved and indeed, engaged for a number of years, about nine in all.  Eventually, however, that relationship ended and this brought about some sort of mental collapse in you.

15It appears clear from the reports that I have received from Ms Matthews, from your drug and alcohol counsellor Renee Howard, and your treating psychiatrist Dr Allan Cherry, all of whom (the latter two also providing reports to this court) reported that you had really been dealing with issues of depression, anxiety, and insomnia for some time.  But in the distress surrounding your breakup of your relationship, the symptoms of those conditions that you were experiencing, became very much heightened and unfortunately, you turned to drug use as a form of relief and self-medication.

16Essentially, you turned to hallucinogenics - specifically magic mushrooms, you abused Dexamphetamine and you also abused Xanax.  It was in this context that this offending and some other offendin, (which was dealt with in the Magistrates' Court, and was the subject of an appeal in this court, additional to the plea that I am dealing with now) which occurred in December and January, when you were behaving in a way entirely different to your normal presentation.

17I also received very loving references from your father and your sister.  They described you as a docile, friendly, placid young man, and described your presentation in December 2017 and January 2018 as entirely different.  Your behaviour was clearly erratic, aggressive, and indeed, in my view, the circumstances simply surrounding the firearm offences indicate some sort of mental upheaval at the very least existing in you at the time.

18Ultimately, you were remanded in custody for a period of 97 days.  You were held at Ravenhall and you found this to be a horrific experience.  You were released home to your parents, where you still reside.  It was not plain sailing for you even then.  It is clear from the reports I received that you were the victim of a deep depression, and found it difficult to motivate yourself to get out of bed.

19You had previously for about two years been taking an anti-depressant prescribed by your GP, the use of which you discontinued shortly before your offending.  It appears it had never particularly agreed with you in any event.  Ultimately, however, you were referred to Ms Howard of Uniting Ballarat and you have attended upon her.  According to the report that I received from her, you attended in a conscientious way and engaged well.  She said that you presented with significant anxiety and depressive symptoms, and therefore referred you to your treating psychiatrist, Dr Allan Cherry.

20In his report, Dr Allan Cherry gave the opinion that when you first presented to him you were suffering from a mixture of a depressive syndrome with anxiety and suicidal ideation.  Both Ms Howard and Dr Allan Cherry noted your lack of motivation and your deep personal distress.  You were placed on a different anti-depressant, together with a low dose of Olanzapine as a treatment for your anxiety.

21It appears in the months that you have attended upon Ms Howard and Dr Allan Cherry, whilst not out of the woods yet if I can put it this way, your condition has greatly improved.  Your mood is better, you have more energy, you are returning it would seem to the young man you always presented as.  In some ways, horrific though this entire series of events may have been, it appears to have uncovered long-standing problems that you have been enduring since your early teens.

22I am satisfied that you have been struggling with depression and anxiety for many years now.  I am satisfied that you have engaged fully in those treating you, for both drug problems, which Ms Howard believes you have now satisfactorily dealt with, and your mental health problems, which to some extent, are ongoing and would still require attention.

23It was suggested as I have already mentioned by Ms Matthews that a
psycho-neurological investigation might be appropriate.  I certainly do not require that in terms of the sentencing exercise before me today.  I am simply suggesting that it might be a good idea for you to follow that up - a head injury at 13 is no small thing.

24In all the circumstances, however, I am satisfied that all of the offending, including the matters comprising the appeal which is before me today, were committed in the context of considerable and significant mental unwellness by you, exacerbated by your use of illicit prescription drugs and hallucinogenics, and I note that at some point in time you were in fact hearing voices telling you to harm yourself.  You were clearly very unwell.

25You reached the age of 25 leading a productive life and carving out a good work history.  You have a supportive and very loving family, who continue to support you, and who have all attended court in order to support you.  I am satisfied that the problems which gave rise to this offending have been attended to by you, and you do not present a danger to the community.  I regard your prospects of rehabilitation as excellent, due in no small part to the efforts that you have made.

26I am satisfied and I note the prosecution do not disagree with this conclusion, that a term of imprisonment to be immediately served is not appropriate in your case.  Indeed, I have had you assessed for a Community Corrections Order, and entirely unsurprisingly you have been found suitable for this order.  I therefore propose to place you on that order.

27I have just dealt with the appeal matters, which were resolved by way of placing you on a 12-month order, the conditions of which I have just explained to you, which I do not in my view need to repeat.  I simply need to ask in relation to this order, if you consent to being placed on this order.  Could you stand up please, sir.

28On the same conditions as the other terms of conditions of the other order, that is, a 12 month community-based order, 150 hours of unpaid community work, attendance for and treatment for drug use, attendance and treatment for mental health difficulties.  Do you agree to all those conditions in relation to this community corrections order, as well?

29OFFENDER:  Yes, I agree.

30HER HONOUR:  Good, have a seat, sir.  We will draw up the two orders.  I see no need to impose judicial monitoring.  As I said, his prospects of rehabilitation are positive provided he attends particularly to the mental health side of things.  There is no great shame in it, Mr Spurr.  Every second person who comes to these courts has depression or anxiety, all right.  Most drug use is underlain by that and you know, it was a very short, confined period of offending, accompanied as I have said by significant mental unwellness, which is now being satisfactorily attended to.  Yes, thank you.

31MR NIBBS:  Your Honour, there was a forfeiture order sought of the double barrel shotgun and round of ammunition.

32HER HONOUR:  Yes.

33MR GWYNN:  I consent, Your Honour.

34HER HONOUR:  That is lucky.

35MR GWYNN:  Yes.

36HER HONOUR:  Well, it is, because it is Mr Spurr's.

37MR GWYNN:  Yes, that is the interesting thing, it is the father's ‑ ‑ ‑

38HER HONOUR:  Mr Spurr Senior.

39MR GWYNN:  I think there was a notice of abandonment also signed and it has been handed in.

40HER HONOUR:  All right.  There is also been a s.464ZF application.  I do not propose to answer - I just do not think he - he does not need to be on the database in my view.

41MR GWYNN:  Yes, that was going to be the submission, Your Honour.

42HER HONOUR:  Was it?

43MR GWYNN:  Yes.

44HER HONOUR:  It is very psychic in this court, very psychic.

45MR GWYNN:  I will just check, Your Honour.  Your Honour I think indicated earlier, announcing the reasons in the orders that ‑ ‑ ‑

46HER HONOUR:  I cannot in relation to the ammunition possession.  You are fined $100.  So you have got a total of $300 all up with the appeal, and I will give you three months to pay that.  So I am glad you checked that.

47MR GWYNN:  As Your Honour pleases.

48HER HONOUR:  So it is only in relation to the first of the summary matters, the possession of the firearm with no license, and the other two firearm offences.

49MR GWYNN:  Just in relation to two Community Corrections Order, I think Your Honour's indicated that they will be concurrent so ‑ ‑ ‑

50HER HONOUR:  They are concurrent.

51MR GWYNN:  So just clarifying the total hours?

52HER HONOUR:  The total hours is 150 hours.

53MR GWYNN:  Thank you, Your Honour.

54HER HONOUR:  Thank you.  We will just prepare the documentation.  I thank you, Mr Gwynn, for your very thorough paperwork and plea.  Very helpful.

55MR GWYNN:  As Your Honour pleases, and thank you, Mr Nibbs.

56HER HONOUR:  Pardon?

57MR GWYNN:  And thank you, Mr Nibbs.

58HER HONOUR:  I was going to thank him for the whole circuit.  You just blew my thunder.  This is ‑ ‑ ‑

59MR GWYNN:  That is my thanks, Your Honour.

60HER HONOUR:  It is the last matter.  We are getting to the thank you linesmen, thank you ball boy stage of the circuit.  Yes, thank you.  Could you sign those please?  Have a look at those and sign those please, Mr Spurr.  Thank you very much.  Thank you, Mr Nibbs.  This is the last matter of the circuit.  Thank you and your instructions very much, because even though we ended up mainly doing appeals, a lot of them were messy and voluminous, and I notice in each case, there was always a chronology typed up for me, which I was very appreciative of indeed.

61MR NIBBS:  That is all, largely is Ms Garner.

62HER HONOUR:  Well I thank Ms Garner for that, because that is a big effort, and it makes life a great deal easier for me.  But I thank you both very much indeed for your assistance in this circuit.  We got really, a great deal done in the circumstances.  So thank you very much for your help with that.

63MR NIBBS:  Thank you, Your Honour.

64HER HONOUR:  All right.  Here are the orders that I have signed.  All the best to you, Mr Spurr.  I am sure you want to see me again about as much as I want to see you again, which is not all.

65OFFENDER:  Thank you, Your Honour.

66HER HONOUR:  So good luck.

67OFFENDER:  Thank you very much.

68MR GWYNN:  His chances are good, Your Honour.

69HER HONOUR:  Pardon?

70MR GWYNN:  His chances are very good.

71HER HONOUR:  I think they are very good.  Get him to have a read of the references, all right.  It is a good thing to know how much other people think of you.

72OFFENDER:  Definitely.  Thank you.

73HER HONOUR:  Thank you, we will now adjourn sine die.

‑ ‑ ‑