Hurst v The King
[2023] VSCA 286
•28 November 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0151 |
| JOEL JAMES HURST | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | MACAULAY and WHELAN JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 November 2023 |
| DATE OF JUDGMENT: | 28 November 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 286 |
| JUDGMENT APPEALED FROM: | DPP v Hurst (County Court of Victoria, Judge Smallwood, 21 September 2022) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking firearms – Trafficking drug of dependence – Handling stolen goods – Applicant subject to abuse in childhood – Whether judge reduced moral culpability – Bugmy v The Queen (2013) 249 CLR 571 – Moral culpability reduced in general way – Childhood abuse not connected to offending in specific way – Leave to appeal granted – Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Whether involvement of covert police operatives warranted reduction in sentence – Whether cumulation excessive – Leave to appeal refused.
Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160; DPP v Kumas [2021] VSCA 215; Ellis v The King [2021] VSCA 229; Kruger v The King [2023] VSCA 149; Lowndes v The Queen (1999) 195 CLR 665; Newton v The King [2023] VSCA 22; Sabbatucci v The Queen [2021] VSCA 340.
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| Counsel | |||
| Applicant: | Mr P Pathmaraj | ||
| Respondent: | Ms MA Mahady | ||
Solicitors | |||
| Applicant: | Sarah Pratt & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MACAULAY JA
WHELAN JA:
On 19 September 2022, the applicant, Joel James Hurst, now aged 39, pleaded guilty in the County Court to 14 charges on indictment, and three related summary charges. On 21 September 2022, he was sentenced as follows:[1]
[1]Extracted from DPP v Hurst (County Court of Victoria, Judge Smallwood, 21 September 2022), [58]–[60] (‘Reasons’).
Charge
Offence
Maximum
Sentence
Cumulation
1
Handle stolen goods[2]
15 years imprisonment
18 months imprisonment
6 months
2–9
Prohibited person possess firearm[3]
10 years imprisonment
24 months imprisonment (aggregate)
6 months
10
Prohibited person possess silencer[4]
8 years imprisonment
12 months imprisonment
6 months
11
Disposal of traffickable quantity of firearms[5]
10 years imprisonment
4 years imprisonment
Base
12
Traffic in drug of dependence[6]
15 years imprisonment
3 years imprisonment
18 months
13
Handle stolen goods
15 years imprisonment
18 months imprisonment
Nil
14
Fail to comply with order to provide information or assistance[7]
5 years imprisonment
3 months imprisonment
Nil
Related summary offences
9
Possess ammunition without a licence[8]
40 penalty units
Convicted and discharged10
Dispose of ammunition to unlicensed person[9]
12 months imprisonment
11
Commit an indictable offence whilst on bail[10]
3 months imprisonment
Total effective sentence
7 years
Non-parole period
4 years 6 months
Pre-sentence detention declared pursuant to Sentencing Act 1991 s 18(1)
300 days
Section 6AAA[11] statement
Total effective sentence of 11 years with a non-parole period of 8 years
Other relevant orders
Forfeiture and disposal of property
[2]Contrary to s 88 of the Crimes Act 1958.
[3]Contrary to s 5(1) of the Firearms Act 1996.
[4]Contrary to s 5(2) of the Firearms Act 1996.
[5]Contrary to s 101A(1) of the Firearms Act 1996.
[6]Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[7]Contrary to s 465AA(9) of the Crimes Act 1958.
[8]Contrary to s 124(1) of the Firearms Act 1996.
[9]Contrary to s 125 of the Firearms Act 1996.
[10]Contrary to s 30B of the Bail Act 1977.
[11]Sentencing Act 1991.
On 17 October 2022, the applicant filed in this Court an application for leave to appeal against sentence.
Circumstances of the offending
It was not disputed on the plea that the revised summary of prosecution opening dated 14 August 2022 was generally an accurate account of the facts.[12] The relevant facts can be briefly summarised by reference to that summary and the indictment.[13]
[12]Plea T4.8–17.
[13]It is necessary to refer to the indictment to clarify the transactions the subject of charge 11.
Between 1 October 2019 and 12 November 2019, a rural farming property in Trafalgar, Victoria was burgled. Firearms were stolen, including an Anschutz 1400 .22 calibre bolt action rifle, along with ammunition and other equipment. Approximately two months prior to the burglary, the applicant had performed work at the farm.
On 8 December 2020, a search warrant was executed at a property occupied by one Panayiotis Alexopoulos. One of the items police found was the Anschutz rifle, loaded and ‘sawn off’. Messages on Mr Alexopoulos’s phone revealed that he purchased the rifle from the applicant. These events gave rise to charges 1 (handle stolen goods) and 2 (prohibited person possess firearm).
This disposal is the first of the disposals constituting charge 11, disposal of a traffickable quantity of firearms.
In January 2021, the Illicit Firearms Squad of Victoria Police established ‘Operation PRONATE 2021’ in relation to firearms trafficking by the applicant. That investigation identified two co-accused who were sentenced with the applicant, Gary Tatterson and Timothy O’Brien, as well as other co-offenders.
On 11 August 2021, the applicant was in custody at the Morwell Police Station. Two covert police operatives had contact with him there. Amongst other things, they discussed the applicant having access to firearms. The applicant told them of his methylamphetamine supplier and the cost of different quantities of methylamphetamine. He also said that he had access to firearms including a 12 gauge shotgun and other firearms.
Between 21 August 2021 and 20 November 2022, the applicant disposed of 10 firearms to the operatives on seven occasions. On some of these occasions, he purchased firearms and ammunition from associates, including Tatterson and O’Brien, which he on-sold to the covert operatives. At other times, he acted as what might be described as an intermediary.
The first such disposal occurred on 21 August 2021. The applicant met the covert operatives at his home in Yarragon, and showed them a homemade .22 handgun. They then drove around together, and the applicant told the operatives that he could supply more firearms. When they returned to his home, the applicant retrieved the .22 handgun, and ammunition, and attempted to fire it without success. The applicant explained that the firing pin needed to be filed down for it to operate. He provided the .22 handgun, and a box of ammunition, to one of the operatives at no cost. These events gave rise to charges 3 (prohibited person possess firearm) and 11 (disposal of a traffickable quantity of firearms), and summary charges 9 (possess ammunition without a licence) and 10 (dispose of ammunition to unlicensed person).
On 26 August 2021, the applicant arranged a sale of an Enfield 1884 model rifle by one Daniel Cole to the covert operatives. On 4 September 2021, the applicant sold the operatives a side by side sawn-off shotgun. On 12 October 2021, he sold them a Baikal brand shotgun. On 31 October 2021, he sold them a 303 longarm rifle. On 11 November 2021, he sold them a .22 calibre CZ513 rifle and ammunition (which had belonged to O’Brien’s father). On 20 November 2021, he sold them a 12 gauge Iver Johnson shotgun, two .22 calibre Lithgow rifles (one of which had belonged to O’Brien’s father), and a .22 calibre Omark rifle fitted with a suppressor.
The five sales from 26 August to 11 November 2021 gave rise to charges 4–8 (prohibited person possess firearm) respectively. The final four sales, made on 20 November 2021, gave rise to charge 9 (prohibited person possess firearm). Each of these nine sales was also a disposal giving rise to charge 11 (disposal of a traffickable quantity of firearms), except for the 26 August 2021 sale by Cole of the Enfield 1884 model rifle.
The 11 November 2021 sale of the .22 calibre CZ513 rifle, and the 20 November 2021 sale of one of the .22 calibre Lithgow rifles, together gave rise to charge 13 (handle stolen goods). The applicant knew that O’Brien had stolen the firearms from his father.
The 20 November 2021 sale of the Omark rifle fitted with a suppressor gave rise to charge 10 (prohibited person possess silencer).
Calls and messages on the applicant’s phone also revealed that between 22 August and 28 September 2021, he engaged in a significant amount of drug trafficking. This gave rise to charge 12 (trafficking in a drug of dependence). The amount trafficked was not determined.
On 25 November 2021, police searched the applicant’s residence, and served on him an order[14] requiring him to assist them to access data stored in two mobile phones found there. He refused, giving rise to charge 14 (fail to comply with an order to provide information or assistance).
[14]Pursuant to s 465AA of the Crimes Act 1958.
All of the offences, with the exception of charge 1,[15] were committed whilst the applicant was on bail, and are the subject of summary charge 11 (committing an indictable offence whilst on bail).
[15]Counsel for the applicant submitted to the judge on the plea that the prosecution opening was in error in asserting that the applicant was on bail when the offence the subject of charge 1 was committed: Plea T26.13–18. Counsel for the applicant confirmed that position before us, and that was not contested by counsel for the respondent We accordingly proceed on that basis.
The applicant’s criminal history and personal circumstances
At the time of the offending, the applicant was a prohibited person (within the meaning of s 3 of the Firearms Act 1996), was on bail (with the exception of charge 1) and was also subject to a 12 month community correction order.
During the period of the offending, the applicant was 36 and 37 years old.
The applicant has numerous prior convictions for possession and use of drugs, and for driving and dishonesty offences. The dishonesty offences include an offence of negligently dealing with proceeds of crime, theft offences, and an offence of obtaining property by deception. The applicant’s prior convictions also include firearms and weapons offences. He has prior convictions for possessing cartridge/ammunition without a licence/permit, possessing dangerous article in public place, possessing prohibited weapon without exemption/approval, non-prohibited person possessing unprescribed longarm, and possessing controlled weapon without excuse. Counsel for the applicant told this Court that the dangerous article, the prohibited weapon, and the controlled weapon, were not firearms.
Until sentenced for these offences, the applicant has been dealt with by non-custodial dispositions, with the exception of one term of imprisonment of 23 days (time served). The applicant was subject to community correction orders almost continuously between February 2015 and September 2021. He has been dealt with for contravention of those orders on a number of occasions.
On the plea, a psychological report by Dr Aaron Cunningham dated 7 August 2019 which had been prepared in relation to other matters, and a psychological report by Ms Lisa Jackson dated 31 August 2022 prepared in relation to these matters, was tendered. Both Dr Cunningham and Ms Jackson recorded the applicant as having described a childhood in which he was subjected to violent abuse by an older half-brother, and general neglect. At the age of 14, he left home and went to live with his father, who had separated from his mother when he was very young. His father was an alcoholic living a transient lifestyle. In his late teens, he rented his own accommodation. He married and moved to Western Australia, where for some years he was engaged in gainful employment. There are no convictions recorded during that period. As a result of his marriage he has two daughters. After being retrenched, he returned to Victoria and the marriage broke down. A short, subsequent relationship produced a son. He has no contact with his son, but maintains a relationship with his daughters. He has smoked cannabis from an early age, and was abusing other drugs prior to moving to Western Australia. After returning to Victoria, his abuse of methylamphetamine escalated. At the time of the offending, he had developed what Ms Jackson described as a ‘raging habit’.
Dr Cunningham had diagnosed the existence of a major depressive disorder stemming from his childhood abuse and neglect. Ms Jackson expressed the opinion that the offences had been committed ‘in the context of substance abuse problems and deteriorating mental health that both reduced his rationality and clouded his ability to recognise the consequences of his actions’. Ms Jackson’s report stated:
An absent father in the home, exposure to parental alcohol abuse during adolescence and his mother’s failure to protect her son from severe abuse perpetrated by his half-brother were all defining events in his childhood. In the absence of any earlier intervention, Mr Hurst has developed maladaptive ways to manage the impact of this trauma that has resulted in mental health, substance abuse problems and antisocial behaviours reflected in his offending.
Ms Jackson’s report confirmed the existence of a depressive disorder as diagnosed by Dr Cunningham. She expressed the view that the applicant is likely to experience further deterioration in custody.
The plea hearing
The reasons for sentence are somewhat discursive. It is necessary to say something about the course of the plea hearing before turning to the reasons.
There were five major issues which counsel for the applicant addressed in the course of the plea.
First, counsel for the applicant submitted that although charge 11 (disposal of a traffickable quantity of firearms) spanned from 24 November 2020 to 20 November 2021, all but one of the sales occurred between August 2021 and November 2021. That was accepted by the judge.[16]
[16]Plea T10.26–T11.9.
Secondly, it was submitted that the sales from August 2021 had ‘effectively been spurred through the encouragement of the covert operative’,[17] and that the covert operatives had entrapped the applicant.[18] That was rejected by the judge, on the basis that the applicant was the one who volunteered to the operatives that he could acquire firearms, and, in exchanges with the judge, counsel accepted that the applicant had offered to get firearms for the operatives.[19]
[17]Plea T9.31–T10.17.
[18]Plea T14.17–T15.25.
[19]Plea T16.14-T16.26.
The judge indicated that he did not think the circumstances constituted entrapment.[20] He then asked, ‘even if it is entrapment, what difference does that make?’ Counsel responded that it would be a mitigating factor, with reference to Kada v The Queen (‘Kada’).[21]
[20]Plea T14.20–21.
[21][2017] VSCA 339, [72] (Tate and Kyrou JJA, Beale AJA agreeing at [133]).
Some time later, counsel for the applicant again canvassed the issue of entrapment, this time in relation to the length of time in which the operatives had allowed the sales to continue. The judge did not reject the relevance of that consideration.[22]
[22]Plea T18.13–T19.14.
Thirdly, it was submitted that the judge ought not to proceed on the basis that the applicant knew the guns would be used for an illegal purpose. That submission was challenged by the judge, who referred to the fact that the applicant thought he was acquiring firearms for people who were in custody and ‘heavily involved’ in drugs.[23] The judge said that he would not be treating that as an aggravating circumstance as it was ‘part and parcel’ of the offence itself.[24]
[23]Plea T12.27–T13.26, T23.18–24.
[24]Plea T24.1–31.
Fourthly, relying upon Ms Jackson’s report, counsel submitted that the applicant’s early experiences had resulted in mental health and substance abuse problems, and anti-social behaviours, reflected in the present offending. It was further submitted that his decision-making skills were ‘fundamentally impacted as a result of the mental health and drug addiction issues that arise from his childhood trauma’.[25]
[25]Plea T20.13-15
Counsel submitted that the principles in Bugmy v The Queen (‘Bugmy’)[26] were relevant in a ‘general sense … regardless of whether there’s a causal nexus, but in my submission, it does explain some of his decision making’.[27]
[26](2013) 249 CLR 571; [2013] HCA 37.
[27]Plea T20.12–T21.5.
The judge referred to the fact that the offending in this case did not involve ‘snap decisions’, and that Bugmy also raised issues of community protection, but he otherwise accepted that he would take into account the applicant’s personal circumstances as explaining ‘how he might have got into this lifestyle’.[28]
[28]Plea T21.6–T22.3.
Fifthly, it was submitted that there was a ‘huge totality issue’. The judge said that there would be ‘very significant concurrency’, because of the overlap between the possession and disposal firearms charges.[29]
36In summarising his submissions at the conclusion of the plea, counsel for the applicant referred to Bugmy, saying ‘Bugmy is relevant to an extent’.[30]
[29]Plea T25.7–T26.12.
[30]Plea T29.30–31.
The judge’s sentencing reasons
The co-offenders, O’Brien and Tatterson, were sentenced at the same time. After setting out the maximum penalties, the judge began summarising the circumstances of the offending, and addressed the issue of the applicant’s knowledge of the purpose for which the firearms were being acquired.
The judge said that when the Anschutz .22 calibre rifle was found, it had been sawn off. He said that it was ‘pretty clear’ from the text exchange with Alexopoulos that the applicant was well aware of ‘what was going to happen’ with that firearm. The judge also observed that text messages on 1 September 2021 with one of the covert operatives concerned a sawn off shotgun. The applicant had forwarded pictures of that sawn off shotgun indicating, the judge said, that the applicant was aware that it had been sawn off. The judge said:
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.[31]
[31]Reasons, [16].
In respect of charge 12 (traffic in drug of dependence), the judge said that he was ‘very careful’ not to sentence the applicant for trafficking in a commercial quantity, because it was difficult to determine the size of the trafficking, albeit it was ‘obviously’ a ‘significant’ size.[32]
[32]Reasons, [18].
In relation to cumulation of the sentence on the drug trafficking charge, the judge said that the disposal of firearms was the most serious charge and that ‘some of’ the sentence on the drug trafficking would be cumulative on that sentence.[33]
[33]Reasons, [27].
The judge acknowledged that none of the guns, apart from the Anschutz rifle sold to Mr Alexopoulos, reached the public. However, the judge said that that was not because of the applicant’s will, and that, in fact, he was trying to sell them to criminals whom he met in custody.[34]
[34]Reasons, [31].
In relation to Kada and the conduct of the operatives, the judge said:
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.[35]
[35]Reasons, [31].
The judge noted the applicant’s prior convictions, of which there were a ‘significant number’. He said that a conviction ‘of concern’ was the one for possession of a longarm.[36]
[36]Reasons, [32], [35].
The judge accepted the utilitarian benefit of the applicant’s plea of guilty, particularly in the light of COVID-19.[37] The judge made allowance for the fact that the applicant had undergone 300 days of custody in COVID-19 conditions.[38]
[37]Reasons, [33], citing Worboyes v The Queen [2021] VSCA 169.
[38]Reasons, [33], [36].
The judge acknowledged the applicant’s submission that all but one of the transactions encompassed by charge 11 (disposal of a traffickable quantity of firearms) occurred between August 2021 and November 2021. ‘[B]ut’, the judge said, ‘it is a charge over 12 months and, in any event, it went for three and probably would have continued indefinitely’.[39]
[39]Reasons, [35].
The judge returned to Kada and entrapment and said:
I take into account the principles contained and were read out to me in [Kada]. I do not know if they are of great assistance here. As [Kada] 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.[40]
[40]Reasons, [35].
Turning to the applicant’s personal circumstances, the judge said the following:
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.[41]
[41]Reasons, [36].
He described the applicant’s personal history as it had been related to Dr Cunningham and Ms Jackson, and then said:
In 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.
I 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.[42]
[42]Reasons, [39]–[40]. The reference to ‘Verdins’ is to R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
On matters of cumulation and totality, the judge said:
[T]here 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.[43]
[43]Reasons, [43].
Later, when pronouncing the applicant’s sentence, the judge indicated that ‘totality and the like have come into play here’, and that were it not for the disposal of firearms charge, the aggregate sentence of 24 months that he imposed for the possession charges (charges 2–9) would be ‘significantly higher’.[44]
[44]Reasons, [58].
The judge took into account the applicant’s awareness that his two daughters were ‘not travelling well’ during his custody,[45] his progress in custody,[46] and a character reference from his ex-wife.[47]
[45]Reasons, [36], [42].
[46]Reasons, [37].
[47]Reasons, [42].
Submissions on the application for leave to appeal
The applicant advanced two proposed grounds of appeal:[48]
(1)The judge erred in failing to reduce the applicant’s moral culpability considering the circumstances of the abuse he suffered as a child.
(2)The individual sentences imposed on charges 1–13 on the indictment, the orders for cumulation ordered on charges 1–10 and 12 on the indictment, the total effective sentence, and the non-parole period are manifestly excessive.
Ground 1 — Failure to reduce applicant’s moral culpability
[48]For convenience, each proposed ground of appeal will be referred to as a ‘ground’ from here on.
The applicant contended that the judge failed to give separate consideration to the principles in Bugmy, and that, had he done so, it would have resulted in a reduction in the applicant’s moral culpability and in the need for deterrence and denunciation.
The applicant’s submissions on ground 1 fastened upon the judge’s treatment of the applicant’s personal circumstances, and the absence of any mention of Bugmy in that treatment. The applicant submitted that the sentencing judge had failed to take the principles in Bugmy into account. He submitted that this was a case where there was a ‘causal nexus’ between the applicant’s deprived upbringing and his offending. It was submitted that the sentencing judge had ‘overlooked’ the Bugmy considerations in the sentence and had failed to take deprivation into account so as to reduce the applicant’s moral culpability. It was submitted that merely taking deprivation into account as a background factor was not sufficient when the Bugmy principles were invoked. Particular reliance was placed upon this Court’s decisions in DPP v Herrmann (‘Herrmann’)[49] and Newton v The King (‘Newton’).[50]
[49][2021] VSCA 160 (‘Herrmann’).
[50][2023] VSCA 22 (‘Newton’).
Relying upon this Court’s decision in Ellis v The Queen (‘Ellis’),[51] it was submitted that separate express consideration of the Bugmy principles was required in the sentencing reasons when those principles were relied upon.
[51][2021] VSCA 229 (‘Ellis’)
In the respondent’s written case, it was contended that the judge had rightly rejected deprivation which could ‘explain the offending’, citing in that respect Ross v The Queen.[52] In oral submissions, counsel for the respondent modified or clarified that submission. In the oral submissions counsel submitted that the Bugmy principles concern deprivation which may reduce moral culpability in a ‘general way’, and also deprivation relevant in a more specific way which can be said to ‘explain’ the offending. It was submitted that the judge had taken the Bugmy principles into account in the general way, but had, rightly, not adopted the more specific application.
Ground 2 — Manifest excess
[52][2022] VSCA 149.
The applicant relied upon the following factors in mitigation: his plea of guilty in COVID-19 times, and his remorse; his childhood trauma; his lack of convictions for firearms or drug trafficking, or violence; his leading of a law-abiding, abstinent life for ‘nearly a decade’; the impact of custody on his mental health; COVID-19 restrictions in custody; the impact of his daughters’ hardship; and his prospects of rehabilitation.
The applicant submitted that the objective seriousness of charge 11 (disposal of firearms) was tempered by the following features:
(a)Duration: He sold ten of the eleven firearms within a three month period.
(b)Type of firearm: The firearms were manual firearms, two of which were of poor quality and unable to be discharged.
(c)Role of covert operatives: Ten of the eleven firearms were sold to covert operatives, who offered the applicant cash whilst knowing he was a user of illicit drugs. The applicant was not charged at the first available opportunity. All eleven firearms sold were seized by police.
(d)Motive: There is no evidence that the applicant knew the firearms would be used for criminal purposes.
The applicant referred to DPP v Kumas (‘Kumas’),[53] where the offender received a sentence of 5 years’ imprisonment on a charge of disposing of a traffickable quantity of unregistered firearms. It was submitted that the circumstances of the offending in Kumas were significantly worse, such that the applicant should have received a ‘far less severe sentence’ than 4 years’ imprisonment.
[53][2021] VSCA 215.
As for charges 1–10 and 13 (handle stolen goods, prohibited person possess firearm, prohibited person possess silencer), the applicant submitted that the applicant had come into possession of the firearms at the same time as he sold them. This meant there was, he submitted, ‘a significant overlap’ between the disposal charge, and charges 1–10 and 13. He submitted that ‘near total concurrency’, ‘at the very least’, was warranted.
The applicant further submitted that the orders for cumulation on the handling stolen goods charges (charges 1 and 13) were inconsistent. He referred to the total concurrency ordered on charge 13, as opposed to 6 months’ cumulation ordered on charge 1.
As for charge 12 (trafficking in a drug of dependence), the applicant submitted, with reference to Diler v The Queen,[54] that given that the quantity sold was indeterminate, a less severe sentence than 3 years’ imprisonment ought to have been ordered.
[54][2019] VSCA 271.
Finally, it was submitted that the order for cumulation on charge 12 failed to reflect that the drug trafficking took place at the same time as the firearms trafficking (charge 11).
The respondent submitted that the offending, particularly the disposal of a traffickable quantity of firearms, was very serious offending. It involved 11 firearms, 9 of which were in working order, with the provision of ammunition on four occasions. It was not a circumstance where the disposal could in any sense be considered to be ‘innocent’. The offending was over a period of significant duration. It was submitted that the applicant has relevant prior convictions involving both firearms and drugs. In all the circumstances, it was submitted that the sentences and the orders for cumulation, and the total effective sentence, could not be held to be wholly outside the range of available sentences.
The principles in Bugmy
In Herrmann, this Court said that the High Court in Bugmy ‘expressed in two different ways the potential relevance of childhood deprivation to the assessment of moral culpability’.[55]
[55]Herrmann [2021] VSCA 160, [36] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
The first, more general, expression was as follows:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[56]
[56]Bugmy (2013) 249 CLR 571, 594 [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37, quoted in Herrmann [2021] VSCA 160, [36].
The second, more specific, expression was in these terms:
An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[57]
[57]Bugmy (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37, quoted in Herrmann [2021] VSCA 160, [37].
Childhood deprivation may be taken into account as a background circumstance when imposing sentence.[58] But it may also reduce the moral culpability of the offender.[59] There is no requirement that the deprivation be ‘profound’ in order for such a reduction to apply.[60]
[58]Kruger v The King [2023] VSCA 149, [41]–[42] (Beach and Taylor JJA) (‘Kruger’).
[59]Bugmy (2013) 249 CLR 571, 594 [40], 595 [44]; [2013] HCA 37.
[60]Sabbatucci v The Queen [2021] VSCA 340, [21]–[25] (Maxwell P and Emerton JA); Newton [2023] VSCA 22, [37], [42]–[43], [45] (Beach and Macaulay JJA).
Deprivation will not, however, always result in an amelioration of sentence. The sentencing judge must evaluate the extent to which past disadvantage has featured in the offender’s upbringing and impacted the course of their life.[61] As this Court said in Sabbatucci v The Queen:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[62]
[61]Magee v The King [2023] VSCA 80, [40] (Beach and Niall JJA).
[62][2021] VSCA 340, [6] (Maxwell P and Emerton JA), quoted in Newton [2023] VSCA 22, [37] (Beach and Macaulay JJA).
Further, whilst deprivation may result in a reduction in moral culpability, it may at the same time bear upon the weight of other sentencing principles, such as by increasing the importance of protecting the community from the offender.[63]
[63]Bugmy (2013) 249 CLR 571, 595 [44]; [2013] HCA 37. See also Munda v Western Australia (2013) 249 CLR 600, 621 [58] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); [2013] HCA 38, quoting R v Engert (1995) 84 A Crim R 67, 68 (Gleeson CJ, Allen J agreeing at 72, Sully J agreeing at 72).
Where a submission that the principles in Bugmy ought apply is made, a sentencing judge must give separate and due consideration to that submission.[64] There is, however, no requirement that the word ‘Bugmy’ appear in the reasons for sentence, so long as a fair reading discloses that the relevant principles were considered.[65]
[64]Ellis [2021] VSCA 229, [62]–[64] (Kennedy JA, Priest JA agreeing at [1]); Kruger [2023] VSCA 149, [41]–[42] (Beach and Taylor JJA).
[65]Devey v The Queen [2021] VSCA 361, [41] (Beach JA).
Ground 1 — failure to reduce applicant’s moral culpability
The judge’s sentencing reasons do not refer to Bugmy in terms. But the decision in Bugmy was addressed in terms during the plea, and the principles it lays down were the subject of consideration in the course of the plea. There are two important matters which emerge from the relevant interchanges between the judge and counsel for the applicant in the course of the plea. First, the applicant was contending that the aspect of the Bugmy principles which was relevant here was the general one, not the more specific principle. Secondly, the judge accepted that the applicant’s deprived childhood was a matter which he was required to take into account and which he said he would take into account.
When the sentencing reasons are then read, in the light of the interchanges on the plea, in our opinion, notwithstanding the failure to refer to Bugmy by name, the judge did take the applicant’s childhood deprivation into account in the general way described in Bugmy.
The judge expressly referred to Ms Jackson’s opinion that the applicant’s deprived background had caused him to develop ‘maladaptive ways’ to manage the impact of his trauma which had resulted in ‘mental health, substance abuse problems and antisocial behaviours’. The judge said he took that into account. He also said he took into account Dr Cunningham’s conclusion that the trauma he had suffered meant that he had a tendency towards social avoidance, introversion and of being persecuted by others. The judge observed that the applicant’s childhood was ‘certainly not one to be envied’, and said that as best he could, he had given that proper consideration in coming to an appropriate disposition.
The judge observed in the course of the plea that the applicant’s childhood deprivation was relevant because it explains how he ‘got into this lifestyle’. It seems to us that that conclusion expressed by the judge in the course of the plea was reflected in the judge’s sentencing remarks when he accepted Ms Jackson’s opinion that the applicant’s background had caused him to develop ‘maladaptive ways’ which resulted in ‘mental health, substance abuse problems and antisocial behaviours’. The judge said in his sentencing remarks that he took those matters into account.
In the hearing before us, counsel for the applicant contended that, on the plea, the applicant had relied both on the general and the specific ways in which childhood deprivation is potentially relevant by reducing moral culpability. We do not accept that reliance was placed on the specific way before the sentencing judge. But, in any event, in our opinion, the specific way referred to by the High Court in Bugmy is not applicable here.
This is not a circumstance where an offender exposed to trauma in childhood has engaged in a type of offending which can be ‘explained’ by that childhood trauma. This offending was not analogous to a violent reaction by a person scarred by violence in his youth. The offending in question here was a series of commercial transactions trading in firearms and drugs.
In our opinion, the judge did correctly take into account the general way described in Bugmy whereby childhood deprivation is relevant to the culpability of the offender. He did not take into account the specific way. In our opinion, there was no error in that approach.
Leave to appeal will be granted on this proposed ground, as the matter was arguable. The appeal, however, will be dismissed.
Ground 2 — manifest excess — consideration
It is trite to observe that this ground can only succeed if the sentence is wholly outside the range of sentences available, and that this is a stringent requirement which is difficult to satisfy.[66]
[66]Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (the Court); [1999] HCA 29.
The factors relied upon in mitigation on the applicant’s behalf were all taken into account by the sentencing judge.
Before us it was submitted that the objective seriousness of charge 11 had to be tempered by the fact that most of the sales were over a three month period; that the firearms were manual firearms, not automatic; that the sales had been procured by covert operatives; and that there was no evidence that the applicant knew that the firearms would be used for criminal purposes.
Ten of the eleven firearms were sold within a three month period, but that period itself is not short. Further, the trafficking commenced a considerable time before that, and before the involvement of the covert operatives. The firearms were manual, but there were a large number of them, and ammunition was also supplied. Whilst it may not be open to conclude that the applicant knew the firearms would be used for criminal purposes, it certainly could not be concluded that the applicant believed they were for an innocent purpose.
The comparison with the sentence imposed in Kumas is unhelpful. Specific comparison with other sentences is rarely of assistance.
On the one hand, the firearms disposed of in Kumas included three semi-automatic weapons, the offender in Kumas had more serious firearms-related prior convictions, and he offended after being served with a firearm prohibition order. On the other hand, there were more weapons disposed of by the applicant, and the offender in Kumas suffered from not only a dysfunctional childhood, but also intellectual impairment and a long history of mental illness.
In Kumas, a covert operative was found to have ‘instigated’ the initial offending. That is not the case in the applicant’s offending.
The offender in Kumas received a longer sentence (5 years) than the applicant (4 years) on the relevant charge, but an analysis of the circumstances in Kumas does not support a conclusion that the sentence imposed on the applicant was wholly outside the available range.
The role of covert operatives in offending is a relevant matter and may, depending on the circumstances, be a factor to be taken into account in mitigation. After a careful review of the authorities, this Court in Kada summarised the relevant principles as follows (in the context of drug trafficking):
(a)The involvement of police in the commission of a trafficking offence is a relevant sentencing consideration.
(b)The weight to be given to police involvement will depend on the circumstances of each case.
(c)The fact that there is a real possibility that the specific offending would not have occurred but for the involvement of the police may carry some weight. As this causation element will be present in many cases, considered in isolation, it will not necessarily be an important sentencing consideration.
(d)The primary focus will usually be on how the circumstances of the police involvement in a particular case bear upon the culpability of the offender. Police involvement does not have a predetermined or uniform impact on culpability. Rather, there is a spectrum along which that impact is to be assessed, ranging from very little impact to substantial impact.
(e)Factors that affect the impact of police involvement on culpability include the following:
(i)The manner in which the involvement of the police contributed to the offending, including the nature and degree of any pressure or coercion applied, or encouragement or inducement offered, by the police to secure the commission of the offence.
(ii)The extent to which the involvement of the police contributed to the offending.
(iii)Whether the police dealt with the offender directly or through an intermediary. Ordinarily, the more remote the police involvement — including any pressure, coercion, encouragement or inducement by them — is to the offender, the less weight it will have on the sentencing synthesis.
(iv)The readiness with which the offender responded to any requests for drugs by the police. The involvement of the police will carry greater weight if the will of the offender is overborne by them, compared to a situation where the offender regards the requests for drugs from the police as a welcome expansion to his or her trafficking operation. Conversely, police involvement will carry less weight if the offender, rather than the police, instigated the relevant trafficking transaction.
(v)Whether the police became involved at a time when the offender was already trafficking in the relevant drug and, if so, the scale of his or her operation at that time and the scale of operation resulting from the police involvement. The involvement of the police will carry less weight if their requests for a drug can be accommodated within the offender’s existing supply lines, compared to a situation where those requests can only be accommodated by material changes to the offender’s scale of operation and supply lines.
(f)The fact that no actual harm arises because the involvement of the police prevents the drugs from being distributed to the community is a relevant consideration. However, ordinarily, this fact will be accorded little, if any, weight as a mitigating circumstance. This is because it would be anomalous for the offender to receive a more favourable sentencing disposition due to a circumstance which, from his or her perspective, is fortuitous, namely, the involvement of the police.
The trafficking in this case began before the covert operatives became involved, although all of the disposals, apart from one, were to the operatives themselves.
This is not a case where the covert operatives instigated the offending. The applicant had volunteered to the operatives that he could acquire firearms, and he then actively pursued them and supplied a significant number of firearms to them. This is not a case where there is any suggestion that the applicant’s will was overborne by the operatives.
In these circumstances, the fact that all of the dispositions, other than one, were to covert operatives does not have a significantly mitigating effect in relation to the disposal of firearms charge.
The disposal of a large number of firearms, predominantly to persons the applicant believed to be criminal associates, was a very serious offence. The applicant has relevant prior convictions. The sentence imposed of 4 years’ imprisonment is not outside the range reasonably open to the sentencing judge.
The offence of trafficking in a drug of dependence is a serious offence which carries a maximum term of imprisonment of 15 years. The sentence of three years’ imprisonment imposed upon the applicant was clearly within the range open to the sentencing judge. Whilst this offending covers the same period as the offending involving disposal of the firearms, it is otherwise distinct and separate offending. The cumulation of 18 months is not outside the range.
The offence of handling stolen goods is also a serious offence with a 15 year maximum term of imprisonment. The goods in relation to charge 1 was a shotgun stolen in a burglary. Again, the applicant has relevant prior convictions. The sentence of 18 months’ imprisonment was not outside the range, nor was the cumulation of 6 months.
The offences of prohibited person possessing a firearm and prohibited person possessing a silencer are also serious offences. The judge observed that, were it not for the disposal of firearms offence, the sentence on the eight charges of prohibited person possessing a firearm (aggregate 24 months) would have been significantly longer. The sentences imposed for those possession offences were not outside the range, and the total cumulation of 12 months was also not outside the range.
No cumulation was ordered on the sentence imposed on charge 13 (handle stolen goods). The source of the firearms on that charge was the father of a co-offender. This distinguishes it from charge 1.
The sentences on charge 14 (failure to comply with order to provide information or assistance), and on the charges relating to ammunition and committing an offence on bail, were such that they did not attract any additional penalty.
Given the seriousness of the offending, the total effective sentence of 7 years’ imprisonment with a non-parole period of 4 years, 6 months was not outside the available range.
Leave to appeal will be refused on ground 2.
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