R v Falconer
[2017] VCC 1596
•1 November 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-01907
THE QUEEN
v
MICHAEL ELING FALCONER Accused
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JUDGE: HIS HONOUR JUDGE MURPHY
WHERE HELD: Melbourne
DATE OF HEARING: 5 October 2017
DATE OF SENTENCE: 1 November 2017
CASE MAY BE CITED AS: R v Falconer
MEDIUM NEUTRAL CITATION: [2017] VCC 1596
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Commonwealth offence – Attempt to import firearms and a firearm part with the intention to traffick in the firearms and firearm part – Offender communicated with a firearms supplier on the ‘Dark Web’ about importing firearms and firearm parts – Offender then communicated with undercover police about importing and trafficking firearm and firearm parts – Offender paid over nine thousand dollars to import four handguns (‘glocks’) and four rounds of ammunition – First prosecution of this offence – Relevance of comparable offences – Commonwealth sentencing principles – R v Verdins (2007) 16 VR 269, considered – Criminal Code 1995 (Cth) ss. 11.1, 361.2(3)
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APPEARANCES: Counsel Solicitors
For the Crown Mr J Saunders Solicitor for the Commonwealth
Director of Public Prosecutions
For the Defendant Dr M Fitzgerald Dr Martine Marich & Associates
HIS HONOUR:
Michael Eling Falconer, you have pleaded guilty to a single charge of attempting to import firearms, and a firearm part, with the intention to traffick in the firearms and firearm part, contrary to section 361.2(3) and section 11.1 of the Criminal Code (Cth) (‘the Code’). The maximum penalty is 10 years imprisonment.[1]
[1] Criminal Code (Cth) ss 11.1 and 361.2(3).
Circumstances of the Offending
The circumstances of the offending were set out in the Crown Opening which was read in court on the plea and which I incorporate by reference.
All of the usernames, websites and alias’ used in communicating online in which the offending relates are subject to a suppression order, and therefore, I will not refer to them expressly.
Briefly, your offending occurred between 22 January 2016 and 3 March 2016 where you communicated with two firearm suppliers on the ‘Dark Web’. The ‘Dark Web’ refers to websites which hide their IP address and locations, and which require encryption software to access.
Your offending concerns the importation of four firearms (which were four ‘Glocks’) and a firearm part, being a silencer.
On 22 January 2016, using the codename which I will refer to as “X”, you used the ‘Dark Web’ to communicate with a firearms supplier who also used a codename, which I will refer to as “Y”.
You initiated conversation by asking:
“Hey, have you ever successfully sent pistols into Australia? Do you send pistols in multiple delivery’s (sic) I,e parts. What sort of packaging do you use? Do you have another level of discreet packaging you can use that costs more?”
Almost instantly, you received a response from Y outlining that it was possible for pistols to be sent to Australia, however, it was “tricky”. You were then told that Y has a regular Australian customer who could assist you, however, this would only be worthwhile if you placed a bulk order.
You then replied to Y the following day asking to be put in contact with Y’s Australian contact, as at that stage, you only intended to purchase a small order.
10.Over the following three days, you discussed payment arrangements and issues of confidentiality and secrecy, to ensure that your order would be discreetly received in Melbourne.
11.Your final message to Y was on 27 January 2017 where you asked:
“…I live in Melb (sic), will he be using a courier to drop them or the post once he is in AUS. I only ask this because I need to know if I need multiple drops to spread the packages, or do I need just one drop for the courier to deliver them…”
12.You were informed by Y that delivery would take approximately three weeks, however, the specific details of delivery would be confirmed by Y’s courier if in fact you placed an order.
13.On 27 January 2016, you also began communicating with another person who you thought to be a firearms supplier, however, was in fact an undercover police officer, who I will refer to as “Z”. Using a codename different to the one you used when communicating with Y, you communicated with the undercover police officer on the ‘Dark Web’. You initiated conversation by outlining to the undercover officer what you were seeking. You said:
“Hey, im (sic) after getting some pistols through our online friend. She said she uses you for shipping with bulk orders and I wanted to know whatever you can provide me to know in order to feel secure with making such an investment. I live in melb (sic) I have various drop boxes I can use, but how would I receive the packages? I obviously understand opsec (sic) so whatever you can provide…I have a network that would swallow up nearly every pistol you could get me.”
14.It is a reasonable inference that your reference to “opsec” was a reference to ‘operational security’.
15.After an exchange over several days between you and the undercover police officer, you said:
“I’ve got faith in you bro, just get me 10 glocks, big, medium, small and as man (sic) as you can with silencers. I’m happy to take a smaller order at the sake of getting them sooner.”
16.After discussing how long a delivery would take to arrive in Melbourne, you made it known of your intention to traffick in whatever firearms you would eventually receive by saying:
“…If I also need to pre pay before they even hit my shore so your (sic) happy im not gonna rip your mates I will fucking do it, I just need these gats here. Because I will sell more than you can get in, I will put a 1k on it. Ive got top level access to 3 MC clubs, triads, established crews and about 20 independent operators who all want everything I get my filthy mits on…”
17.From your communications with the undercover operative, it is clear that you agreed to purchase the following: one Glock 17 with a threaded barrel and a suppressor for US $3,500; one Glock 19 for US $2,000; 2 Glock 26 for US $2,200 each; and four rounds of 9mm ammunition and a delivery fee of $1,000.
18.On 19 February 2016, you paid a deposit of approximately US $4,230 to the undercover operative in bitcoin. On 2 March 2016, you notified the undercover operative that you had made the final payment of AU $5,000.
19.On 2 March 2016, you met with another undercover Australian Federal Police operative who used an assumed name (which is also suppressed) and to whom I will refer to as “Steve”. Steve purported to be a firearms supplier to discuss delivery of the firearms you had purchased. The meeting took place at a café in Middle Park.
20.During this meeting, which was secretly recorded by Steve, you showed him an A4 piece of paper containing an image of a $50 note. Steve showed you a picture of the same image on his phone.
21.It was confirmed that the four firearms and firearm part would be delivered the following day, and on this day, the firearms were to be referred to as ‘tools’. You told Steve that you would be driving a blue Nissan to the meeting the following day.
22.On 3 March 2016, you attended at a specified location in Port Melbourne for the purposes of taking delivery of the shipment. You were seen driving a blue Nissan Pulsar towards the prearranged meeting point. You were followed by a green BMW sedan being driven by a female.
23.At 11.45am, you sent a message to Steve, the undercover operative, which read:
“Dark Green BMW 4 door sedan, last numbers 431, My girl dropped off”.
24.You then asked Steve to place the box of tools into the boot of the car.
25.Shortly after midday, Steve approached the green BMW and placed a box containing four Glock pistols, a suppressor, a threaded barrel and four rounds of ammunition into the boot of the car. You were observed to be sitting in a nearby café looking over towards the green BMW.
26.After you received a text message from Steve stating “Done”, you replied stating:
“roger, this phone is now dead, speak to you next time.”
27.At this point, you and your female accomplice entered the blue Nissan and drove away, at which point you were intercepted and arrested.
28.You, therefore, did not take possession of the firearms and firearm part that you had purchased. You participated in a record of interview where you exercised your right to silence.
Seriousness of the offending
29.It is first necessary to characterise the seriousness of your offending and your moral culpability. I am satisfied that you had a high level of involvement over the charge period. It follows that your culpability is high. You were seeking to access illegal firearms through the ‘Dark Web’ – the communications on which were encrypted. It is conceded that your purpose in the exercise was to obtain the firearms and then on sell them at a profit.
30.In addition, once you had reached an agreement to purchase the firearms on 17 February, you advised the operative that you had a number of possible people who would be willing to purchase the firearms from you.
31.You had an intense involvement over the period of time in which you initially contacted Y to when you made contact with the undercover operative, to eventually when you proceeded to arrange to collect the firearms, and were present when they were delivered.
32.An additional matter going to your culpability is that, given your background in the Armed Services, you must be taken to have been aware of the lethality of firearms, in a way that would not be applicable to an ordinary member of the community.
33.I accept the submission of your counsel that this involves a single attempted shipment of a limited number of firearms. This is relevant as the offence could range from a single firearm part to multiple shipments of a large number of weapons as in the New South Wales cases I was referred to. However, in characterising this case, as submitted by the learned Crown prosecutor, it was the nature of the firearms that makes this offending seriousness. Each of the firearms attempted to be imported were concealable, semi-automatic weapons, and one which was fitted with a suppressor. This was thus a significant attempt to import illegal firearms, notwithstanding that you were not involved in the actual importation, but that you were to take delivery once the firearms had been imported.
Personal circumstances
34.Your personal circumstances were set out on the plea, and also in the psychological report of Patrick Newton that was tendered.
35.In short compass, you are the youngest of three children and grew up in Richmond. You describe yourself as having “a great childhood”. Your father played Australian Rules Football and owned an IT company. You were extensively involved in the sporting community as you grew up.
36.You attended at Coastville Primary School, and attended at both Cheltenham Secondary College and St Leonard’s College where you completed year 12. Throughout these years, you played both basketball and Australian Rules Football semi-professionally. You were then selected and offered a scholarship to a Californian university to pursue your basketball career, however, left this after 12 months and returned to Melbourne. You were then offered a contract to a professional Melbourne basketball team, however, injuries during the pre-season made you unable to continue with a professional basketball career.
37.You joined the Army Reserve in 2004 at age 19. You have continued to serve in the armed forces in a combination of full-time/part-time capacity since this time. You have been deployed on two occasions – one eight month period in 2013 in the East Timor and then again in 2014 as part of border protection activities. You had been selected on two occasions to train for the Special Forces, however, injuries hampered your successful selection on both occasions.
38.You were married on the day before your first deployment to East Timor. Unfortunately, this marriage ended whilst you were on active duty. This caused you severe distress at which point you spiralled into depression. I will return shortly to your psychological history.
39.As a result of your sporting and military injuries, you suffer from gastro-oesophageal reflux disorder, osteoarthritis in your right knee and seborrheic keratosis, which is a skin condition. These conditions require various forms of treatment on a semi-regular basis.
40.In recent times, you have been working in a retail store operated by your partner.
41.On the plea, evidence was led from Ms Sandra Seager who is the coordinator of Camp Awakenings. Recently, you have been undertaking community work and community training camps with Camp Awakenings, which is an Australian youth development program for year nine students which focuses on building support networks for its participants. Ms Seager gave impressive oral evidence on the plea which outlined your participation in this program and significant contribution, which I give you credit for. She also stated that you would be welcomed back after the criminal proceedings had concluded and you had served any period of imprisonment.
42.You tendered a number of testimonials supporting your prior good character, good work ethic, contributions to the community, including to a Veterans Museum, and the fact that this offending is clearly out of character.
Matters in mitigation, psychological history and Verdins
43.A significant aspect of the plea was that your counsel sought to rely on principles five and six of Verdins[2] that, due to your psychological state, any sentence will weigh more heavily on you than it would on a person in normal health, and that there was a risk that imprisonment would have a significant adverse effect on your mental health. Your counsel did not seek any reduction in moral culpability due to your psychological state.
[2] R v Verdins (2007) 16 VR 269 (‘Verdins’).
44.In support of this submission, your counsel relied on the psychological assessment report of Patrick Newton, and two treatment reports of Dr Matthew Barth, psychologist.
45.Mr Newton opines that you have a long history of emotional upheaval. This began when you were aged 16 when you and a group of friends were attacked by a gang with knives. You were also attacked in a nightclub in Bali when you were aged 21. This attack lasted several hours and you were forced to escape and hide while your attackers dispersed.
46.Your psychological issues have been further pronounced by your time in the Armed Services. You contracted dengue fever in 2013 whilst on duty and developed severe depression and anxiety as a side effect of the medication you were taking. Later that year, as I briefly mentioned, your depression was exacerbated by the breakdown of your marriage while you were on duty.
47.Mr Newton reports that you felt worthless, inadequate and grief stricken as a result of this. This ultimately led you to, a few weeks after the breakdown of your marriage, turning a rifle upon yourself and pulling the trigger. It was only the result of having no bullet in the chamber and the weapon misfiring that you did not sustain any physical harm. Your counsel placed significant reliance on this episode on the plea to submit that, in conjunction with the findings of Mr Newton, you suffer from chronic post-traumatic stress disorder (‘PTSD’). Dr Barth, who has been treating you, concurs with this diagnosis.
48.Mr Newton opines that, as a result of these events that I have briefly mentioned, you are detached from the world around you, your anxiety can be so intense that it interferes with your capacity to reflect calmly on your experiences, particularly in the Armed Services. Mr Newton states that your anxiety and PTSD can be triggered by something innocuous such as a clicking sound which in turn triggers a physical, cognitive and emotional reaction. He concludes by stating that, although counselling is available in a custodial environment, given your background of opposing such assistance, your condition is likely to deteriorate in custody. He opines that you would be vulnerable to acts of self-harm and your episodes of anxiety would be more regular and intense.
Consideration
49.I accept that the principles of Verdins have some application in this case. It is clear that you have a complex mental health disorder and this has, potentially, been exacerbated by the fact that, due to your background in the Armed Services, you have been unwilling to seek treatment. As Dr Barth opines, you will require long-term intervention to ensure your mental stability. You will have counselling and psychologists available to you in prison and the prison authorities will be made aware of your mental health issues. Obviously, however, the availability of such services in the prison system will be less than were you in the community and your capacity to respond to treatment will be more problematic in the custodial environment. I do take these matters into account in mitigation.
50.On the plea, evidence was led from a sergeant in the Australian Defence Force who had been your superior in the Army Reserve. He recognised and supported your good service in the Army and was somewhat apologetic that he had not identified a decline in your psychological functioning from around 2015. He confirmed that you face a risk of Army disciplinary proceedings as a result of these criminal proceedings. A further document to that effect was also tendered. I take those matters into account.
Prospects of rehabilitation
51.I am required to assess your prospects of rehabilitation.
52.Overall, having regard to the evidence of Ms Seager, your prior work history, an offer of employment that was tendered on the plea and your service in the military, I regard your prospects of rehabilitation as excellent.
53.Your counsel put a number of other matters in mitigation which I take into account in your favour.
54.First, you are entitled to the benefit of your plea of guilty. I am required to take this into account pursuant to s. 16A(2)(g) of the Crimes Act.[3] Although this came after the matter had been called on for trial, discussions between the parties proved fruitful and the matter was able to be resolved without the need for a trial. You have facilitated the course of justice, accepted responsibility for your conduct and obviated the need for a trial. You plea of guilty is some evidence of remorse.
[3] 1914 (Cth) (‘the Act’).
55.Further, I am required by s. 16A(2)(h) of the Act to take into account the extent to which you have cooperated with authorities. It became evident on the plea that you had sought to provide the authorities certain information which was relevant to their investigations. This is also evidence of remorse and I take these matters into account.
56.Your counsel placed particular emphasis of the fact that, pursuant to the Defence Force Disciplinary Regulations, because you are a listed member of the Armed Services, consequent upon your conviction you will be dealt with for prejudicial conduct, and face the potential for further penalty. It was said on the plea that this could be a possible dishonourable discharge, or even military detention.
57.I am prepared to give some weight to the anxiety that you will suffer during any period of imprisonment as you await your fate under the military discipline regime.
58.I also take into account that, as a consequence of your plea and this sentence, you will undoubtedly lose your military career.
59.The learned Crown prosecutor submitted that, as in a case of drug offending, prior good character for this type of offence carries les weight than it otherwise might.
60.As a matter of principle, I accept that. However, this is to be weighed against your impressive record of contributions to the community and the fact that you have served your country, including two tours in East Timor and the Timor Sea.
61.As a result of injury, your military career suffered, as did your sporting career. The Department of Veteran Affairs has recognised the existence of certain injuries that you suffered while on duty.
62.All these matters can be brought into account in your favour and in the exercise of leniency.
Sentencing considerations
63.In a comprehensive plea, your counsel submitted that all of the requirements of sentencing, as outlined in section 16A of the Act, the principle of parsimony and that imprisonment should be a sanction of last resort, could be achieved by a disposition that did not require a term of imprisonment to be immediately served.
64.That is, your counsel sought for the matter to be disposed of by way of a Recognizance Release Order which would see you placed effectively on a good behaviour bond.
65.The learned Crown prosecutor submitted that the seriousness of the offending, the nature of the weapons sought to be trafficked and the demands of general deterrence called for a sentence of immediate imprisonment be served.
66.The learned Crown prosecutor referred to the fact that this is the first time this particular offence has been prosecuted in an Australian court. As such, no comparable cases dealing with this particular provision of the Code are available.
67.Accordingly, the learned Crown prosecutor referred me to cases from New South Wales that had dealt with a conspiracy to import firearms. While these cases are not directly comparable, I accept the submission that the principles articulated by the learned sentencing judges are applicable.
68.There is something of an analogy between an attempt to import an illegal firearm and an attempt to import an illegal drug. While the sentencing regimes differ, in both cases, the result of the criminal conduct has the potential to wreak havoc in the community. One difference in making this offence more serious is that there is a durability about an illegal firearm that does not apply in the case of an illegal drug. Once the illegal firearm is in the community, it remains available for the use in illegal activities until seized.
69.In approaching the sentencing task, I accept the prosecution submission that the community disapproval of illegal importation of illicit drugs would also be reflected in dealing with illegal importation of firearms.
70.Just as general deterrence plays a prominent sentencing role in dealing with importing illegal drugs, for similar reasons it must play a role in sentencing for this offending. In this respect, I do not accept the submission of your counsel that appellate courts have accepted that non-custodial dispositions may be appropriate in cases involving a higher maximum penalty than the maximum penalty for this offence. He referred to the frequently cited guideline judgment in Boulton.[4] That authority is a guideline only, and what first must be determined is whether the seriousness of the offence is such that a non-custodial sentence is appropriate.
[4] Boulton v The Queen (2014) 46 VR 308.
Comparable Cases
71.As I have noted, the learned Crown prosecutor referred me to five cases which he said were broadly comparable with the facts in the present case, noting that all of the cases relate to a different offence as this is the first time this offence is being prosecuted. Three of the cases refer to a single police operation in New South Wales involving a conspiracy to import firearms and firearm parts contrary to the provisions of the Customs Act.[5] I do not find the cases of assistance as they relate to a large number of importations of 22 packages containing 129 complete and 14 partially complete semi-automatic pistols.
[5] 1901 (Cth).
72.Given the magnitude of the difference between the quantum of firearms imported in those cases and the present case, as I indicated, I do not find them of assistance. Further the New South Wales operation was a significant criminal enterprise comprising a hierarchy of offenders. I was referred to DPP v Nguyen[6] where the offender imported 16 firearm parts and accessories on five separate occasions over an 18 month period. He used fake licences in order to avoid detection. Significantly, the court found that the firearms parts were not for ongoing sale in the weapons trade. The offender received a six month sentence of imprisonment to be released forthwith upon entering a 12 month recognisance release order.
[6] [2015] VCC 1772 (Punshon J).
73.Finally in DPP v Hong[7] the offender imported 5,400 knuckledusters, 810 Tasers and 100 extendable batons. The offender purported to sell the imported items to an undercover police officer. He was sentenced on the importation of the Tier 2 goods to 12 months imprisonment to be released after four months upon entering a recognisance release order. In the last two cases, namely Nguyen and Hong, both relate to a different legislative scheme, a scheme purely confined to the importation of prohibited goods.
[7] [2015] VCC 344 (Gaynor J).
74.In the present case, the charge that you have pleaded guilty to contains in it an admission that you were to traffick the firearms and the firearm part should you have been successful in your attempt.
75.For these reasons I find the cases put forward of little assistance.
Purposes of Sentencing
76.The basic purposes for which a court may impose a sentence are punishment, deterrence (both general and specific), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.
77.I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, so far as possible, offenders are rehabilitated and reintegrated into society. In sentencing you, I must apply the matters set out in s. 16A of the Crimes Act 1914 (Cth) and the principle of parsimony.
78.The offence carries a 10 year maximum sentence, which indicates the seriousness with which Parliament views this offending. In this case, I regard general deterrence as a very significant sentencing factor. Illegal firearms are a blight in our community. You must be taken to be aware of the impact that firearms can have. Illegal weapons are inevitably associated with criminal conduct. Once they are in the community they retain the capacity to be used in criminal activity. Illegal weapons are readily marketable and thus, valuable.
79.This type of offending is difficult to detect. A signal must be sent to all people minded to access illegal firearms that they will be met with heavy punishment when apprehended. The rewards available for trafficking of firearms must be deterred by heavy punishments inflicted when offenders are intercepted.
80.Your conduct must be denounced. It is totally unacceptable for you, a serving member of the Army Reserve, to be attempting to procure illegal, concealable firearms for purpose of on-selling at a profit.
81.I give full weight to the matters in mitigation, including what I have said as I regard your prospects of rehabilitation as excellent. Notwithstanding your excellent prospects of rehabilitation, your prior good character, your contributions to the community, including the Armed Services, I am unable to accept the submission that you be dealt with by way of a non-custodial disposition. A sentence of imprisonment is required for purposes of general deterrence and denunciation.
82.In order to facilitate your rehabilitation, while at the same time, signalling the denunciation of your conduct, I propose that you be released on a recognisance after serving a period of imprisonment.
Sentence
83.On the charge of attempting to import illegal firearms and a firearm part, you are sentenced to two years imprisonment.
84.I order that after you have served nine months imprisonment you be released upon entering a $500 recognisance to be of good behaviour for a period of 15 months.
85.I declare that this sentence is to commence today.
86.I declare 28 days of presentence detention and order that it be noted in the Records of the Court.
87.I declare, pursuant to s. 6AAA of the Sentencing Act 1991, that had you not pleaded guilty I would have sentenced you to a term of two years and six months imprisonment to be released on recognisance after 18 months.
88.I am required to explain the sentence to you. I have sentenced you to a term of imprisonment of two years, but I have ordered that you be released after you have served nine months imprisonment, provided you enter an agreement or a bond of $500 to be of good behaviour for a period of 15 months. I have declared that this sentence is to commence today, and have declared that you have already served 28 days of this sentence.
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