R v Fellows

[2020] VCC 1496

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

Indictment No. K11300034

CR-20-00742

THE QUEEN

v

RICKY JAMES FELLOWS

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2020
DATE OF SENTENCE:	18 September 2020 (ex-tempore)
CASE MAY BE CITED AS:	R v Fellows
MEDIUM NEUTRAL CITATION:	[2020] VCC 1496

REASONS FOR SENTENCE

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CRIMINAL – Plea – Commonwealth and State offences – Importation of Tier-2 goods – Possession of a drug of dependence – Possession a trafficable quantity of firearms – Unlicensed person store forearms or ammunition in an insecure manner – Antique firearms – Collector – Serious offending – Inherent purpose of firearms licensing to protect the public – Long term mental health and physical injuries – Major depressive disorder – Offender of good character – Firearms not associated with criminal activity – Carer – Significant burden of imprisonment – Custodial sentence a last resort – Crimes Act 1914 (Cth), s17A – Verdins v The Queen (2007) 16 VR 269 – Boulton v The Queen (2014) 46 VR 308, applied – DPP v Glumac [2017] VCC 1775 – Separate two year Community Corrections Order imposed on the State and Commonwealth offences.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sprague (Solicitor)	Ms A Hogan, Solicitor of Public Prosecutions
For the Accused	Mr P. Wilkins (Solicitor)	Wilkins Lawyers

HIS HONOUR:

1Ricky James Fellows, you have pleaded guilty to one charge of importation of Tier 2 goods[1], one charge of possess a drug of dependence[2], one charge of possessing a trafficable quantity of firearms[3], one charge of unlicensed person storing firearms or ammunition in an insecure place[4] and two uplifted summary charges of possession of prohibited weapons without exemption and possession of imitation firearms without exemptions.

[1] Contrary to section 233BAB(5) of the Customs Act 1914 (Cth).

[2] Contrary to section 73 of the Drugs, Poisons and Controlled Substances Act 1981.

[3] Contrary to section 7C(1) of the Firearms Act 1996.

[4] Contrary to section 129A of the Firearms Act 1996.

2The maximum penalties are set out in the comprehensive prosecution opening which I incorporate by reference. In sentencing you I have been assisted by comprehensive written submissions by both Mr Sprague, the learned Crown prosecutor, and your instructing solicitor and counsel, Mr Wilkins, and so that these remarks can be truncated and read in conjunction with the discussion on transcript and the two written submissions which I have exhibited.

3The circumstances of the offences are set out in the prosecution opening and essentially as a result of information coming through the Sydney Customs gateway the Australian Federal Police (‘AFP’) ascertained that you had imported illegal Tier 2 goods from China and as a result of that they tracked you down and raided your house in Tooradin in April of last year.

4It was at that point that they found that you had imported a couple of other Tier 2 items illegally from overseas or which are the subject of Charge 1 and then they found cannabis, 56 grams of cannabis, out in the back shed and they also found a number of firearms and illegal weapons which were the subject of the other charges.

5In particular the firearms themselves, there was some 10 of them that were the firearms, including a couple of pistols and then two imitation pistols.  They were in two or three different places around the house. One pistol was in a holster under the bed in a spare room. A number of them were loaded and it is all set out in firearm examiner's reported which was exhibited in the course of the plea.

6You cooperated with the police when they went through your property and explained that essentially you had inherited a number of the firearms, which from their appearance appeared pretty old and including some ammunition that was obviously old, because you described it as being paper cased shotgun shells, which have been well and truly superseded by plastic cased shells. That is an indication that that ammunition was old consistent with the guns being old and looking old in the photos. 

7In addition to the illegal weapons there were what are described as a number of them were martial art type weapons. Again some of them were old, and some of them were decorative and some of them were set up as a display in a room in the house, but it is not clear which room it is in the photographs.

8Some of the firearms were loaded and some of them were shortened and they were all illegal.  Significantly one of them did not have a serial number but the other ones did not have defaced serial numbers, which is often a common accompaniment of firearms to be the subject of use for nefarious purposes.

9A couple of them had been previously registered and one had been the subject of a burglary three or four years previously.  Your explanation was that some of them you inherited from your father, a couple of them had been left with you by other people and then they had never come back to get them, and you were a collector of martial arts type weapons.

10On the plea your counsel exhibited a letter from a friend of yours who had inherited some blades from a gentleman that made them in America and she had donated them to you and given them to you on the basis that she knew that you in fact were a collector of such items.[5] So that is the nature of the offences. 

[5] Exhibit 7 ‘Letter of Leni Roberts’ dated 16 March 2020.

The issue of moral culpability and seriousness,

11It was accepted by your counsel that the offending here is serious.  As the learned Crown prosecutor noted these were serious weapons for no legitimate purpose and the whole system of licensing of firearms is designed to protect the public by providing that they are not to be possessed except in limited circumstances and there is a high penalty on those who possess illegal firearms.

12In this case the explanation given was as I have indicated, that you had accumulated them over the years and some of them were passed down from your father.  As I indicated others, of the firearms had been left with you.  Some of them were martial arts items as I indicated and some of them had just been given to you or collected or accumulated by you over time.

13There is support for the account you gave in the record of interview which is to that effect in that all the weapons appear fairly old.  They did not have the appearance of illegality such as altered serial numbers or defaced serial numbers, and they were in a number of locations around the house, and in a sense not secreted.

14Further, there was a reference from the martial arts instructor, Mr Lim, that indicates that he had been involved with you since 1983 which would be when you were 19 and he had trained you in martial arts including weapons.  So that is consistent with you having some of these items as martial arts type weapons.

15Also in the references is as I say a reference from Ms Tully who indicated that she had in fact given you some of the blades that she had been given or inherited from someone in America.  So there is consistency and support for your account in that material.

16Also on the plea were the reports from three different medical practitioners,
Dr Kelly, your GP, a psychiatrist and a psychologist about your mental health.  You have had long term multiple mental health and physical injuries.

17On the plea your counsel submitted your list of medications.[6]  You were on a smorgasbord of serious drugs including Pristiq which is a mood stabiliser where the dosage has been lifted very considerably.

[6] Exhibit 10, ‘Patient Health Summary’, 18 September 2020.

18The report from those three practitioners, and particularly your GP, indicates that you have had multiple accidents over the years, motorcycle, and car accidents, such that you have been on a disability support pension (DSP) since you were aged 43 in 2007.  This on its own for a person of your age, at that stage 43, prime of working life, to be placed on a DSP for physical ailments would itself have a very significant impact on your mental health.

19Now you are on multiple medications for pain, anxiety and mood including insomnia as set out in Exhibit 10[7], and thus the explanation given by Mr McKinnon, the forensic psychologist, that your mental state was such that you did not follow through with trying to regularise your possession of these materials is supported by your medical condition that you really were just in a dull space such that you were almost withdrawn, socially isolated, such that you could not actually get around to doing - that get up and go, that you would have if you had not been on all this medication to get the licenses you knew you had to get.

[7] Ibid

20You are not disputing you knew it was illegal but you just did not do anything about it, and that is supported by the reports that I have referred to including the report from Mr McKinnon.  The psychiatrist indicates you are suffering from depression and major depressive disorder and your own GP indicated that you had been on significant serious medication for pain since 2006.

21Mr McKinnon found you were suffering from complex PTSD and he submitted that this contributed to your offending and I incorporate by reference a paragraph from his report where it is extracted in the submission from your counsel where he indicates that your mental health has contributed to your inability to sort of get up and do something about getting the licences for these weapons and firearms.

22So there is medical support for your explanation for not doing anything about it.  It does not excuse your offending but it explains it and that is the way it was put by your counsel.  Significantly I regard it as very important as you have no prior convictions.  In addition to that there is references before me from Ms Tully and Ms Old and Mr Lim that support your good character over the years.

23This is consistent with offending regarding the possession of these weapons as being in the nature of a status offence rather than one where you have gone out and were acquiring these weapons for the purpose of nefarious activities, illegal activities.

24So you have just accumulated them over time and they were not associated with criminal activity even though the possession of them was in fact criminal.  Indeed so was the importation.  So your depressed state over the years helps explain why you did not take action to regularise your possession of these firearms and the illegal weapons.

25I turn now to subjective matters which were canvassed on the plea.  Your personal circumstances are set out in your counsel's submission and also in the report of Mr McKinnon and I incorporate them by reference.

26Significantly you are now aged 56 and are single even though you have two daughters aged 19 and 26 from an earlier relationship that you only in recent times have re-engaged with.  You had difficulties at school and left school after Year 9 and joined the workforce.

27After a short time you worked with your father in his business for a number of years in rubber exporting until you suffered a significant injury which made physical work, heavy physical work, difficult.  You then moved into other occupations including plastering and managing the local hotel down there at Tooradin.

28Over the years you suffered a number of motor vehicle accidents and injuries and motorcycle, such that a final accident in 2006 resulting in you having to leave the workforce and as I have indicated you have been on a DSP since that time.

29You were close to your father who died I think a couple of years ago and you had been hunting with him as a young child and you inherited these firearms from him when he passed away.  Another significant matter put on the plea was the fact for the last five or six years, and you confirmed this on oath, that you have been caring for a woman of about your age, Ms Ould who is suffering from a significant work related debilitating condition and has been relying on you for assistance in her activities of daily living over that time.

30She provided a letter to that effect and she has in fact been living in a room in your house and you, as I say, provide her with ADL assistance.  In more recent times you have been provided with a small allowance to reimburse you under the social security system, and she is now in the position of transitioning to assistance under the NDIS.

31These actions by you over the last half a dozen years are matters I give you considerable credit for.  Although over that period that you were assisting her in effect you were also acting illegally in that you had been in possession of these items the subject of your plea, the community has benefited from your assistance to her and I regard it as a matter that calls for considerable leniency, and is consistent with the good character that is referred to in the other references.

32Your counsel did not submit that a sentence of imprisonment would have an impact on Ms Ould but a sentence of imprisonment, in the circumstances, would have an impact on her should it be imposed. 

33Your counsel in the plea canvassed the impact of a sentence of imprisonment on your own condition. This is discussed by Mr McKinnon.[8]  I am satisfied that a sentence of imprisonment would have a significant impact on you given your physical condition and also your mental health condition notwithstanding that the authorities would make efforts to ameliorate the problem.

[8] Exhibit 2, ‘Report of Mr McKinnon’ 8 September 2020.

34I take your mental health and physical conditions into account in a general way in relation to Verdins'[9] considerations but in consideration of limb one and also limbs (v) and (vi) of Verdins. 

[9]Verdins v The Queen (2007) 16 VR 269

Sentencing considerations. 

35The learned Crown prosecutor emphasised that considerations of general deterrence are very important. A signal has to be sent to the community that unlicensed possession of firearms will be met with heavy penalties.  Thus general deterrence and denunciation are important.  In this case specific deterrence is of less consideration due to your lack of prior convictions.

36Your rehabilitation is also important.  I am satisfied you have good prospects of rehabilitation given the mental health response you have made and the nature of the offending which as I have indicated is essentially is status related and consequent upon inaction that could be significantly explained as indicated by Mr McKinnon by your mental health condition.

37In sentencing you considerations of parsimony are also relevant.  They apply both under the Commonwealth Crimes Act 1914 for charge 1 and under the Sentencing Act 1991 for the remaining charges.  Your counsel submitted that a Community Corrections Order was the appropriate disposition here.

38The learned Crown prosecutor submitted that the seriousness of the offending called for a sentence of imprisonment although he conceded that a combination sentence was within range.  Your counsel relied significantly on the Sentencing Snapshot which indicates that in the higher courts over the relevant period 83 per cent of offenders dealt with for firearms offences had a prior history and one third of them were on some other order such as bail or another sentencing order.

39Eighty-one per cent of them had substance abuse problems and 65 per cent of them were methylamphetamine users, and 85 per of those dealt with in the higher courts were sentenced to a term of imprisonment, so 16 per cent of those dealt with in the higher courts were not sentenced to a term of imprisonment.

40I was also referred by your counsel to the case of Glumac[10] which is to some extent of assistance as to a sentencing range, although in that case the offender had licensed weapons as well as an armoury of unlicensed weapons.

[10]DPP v Glumac [2017] VCC 1775

41Here in sentencing you in the light of the sentencing snapshot your lack of prior offending is very significant.  Further, although you have pleaded guilty to possession of cannabis I am satisfied that it was for personal use and thus you are in a limited window of firearms offenders effectively with no prior history and no substance abuse issues.

42This raises significantly the issue of parsimony and directs the court to look for all possible alternative dispositions before imposing a sentence of imprisonment.  Here, given your age and your prior good record and your plea of guilty at an early stage and your mental health conditions identified in the medical material before me, I accept the submissions of your counsel that the principles discussed in the Court of Appeal case of Boulton[11] are applicable that a community corrections order can in the limited range of cases be used as the appropriate disposition for serious offending.

[11]Boulton v The Queen (2014) 46 VR 308

43I note the submission by the prosecutor that the Boulton principles do not apply to Charge 1 which is a Commonwealth offence however, under the Commonwealth Crimes Act the principle of imprisonment as a sanction of last resort does apply.[12]

[12] Refer to Section 17A

44You have suffered significantly by the discovery of these firearms as they would have been of considerable value, both monetary value and also sentimental value, had you been able to have them licensed.  Thus you have lost that opportunity.

45It is now nearly 18 months since the police raid and you have had the burden of the proceedings hanging over your head for that period and that has obviously been an impact on its own.  Over that period you have taken the opportunity to access the appropriate mental health assistance through your psychiatrist and psychologist and I am satisfied you now have insight into your offending, and you are remorseful from your offending, and that was confirmed in the CCO report.

46You also did cooperate with the police.  In sentencing you I have taken into account the comprehensive submissions by your counsel and acceded to his submission that a community corrections order is the appropriate disposition here.

47I am satisfied that it will meet all the requirements of sentencing under the Commonwealth Crimes Act and under the Sentencing Act 1991 (Vic). You are to be utterly condemned for your conduct in just failing to take the appropriate action to regularise your possession of the various weapons that you have acquired over the years and similarly importing the Tier 2 goods that are the subject of Charge 1.

48The internet makes this type of offending - this is Charge 1 - very easy.  A considerable period under supervision of a community corrections order will allow your mental health to be monitored and for you to put this matter behind you consistent, with you coming before the Court as a first offender at age 56, which is very significant.

49In sentencing you I am required to impose a separate sentence for the Commonwealth offence as that cannot be dealt with by a State Community Corrections Order.  It can be dealt with by a community corrections order but not as part of an aggregate sentence.

50So with your consent I am proposing to impose a one year community corrections order for the Commonwealth offence which is Charge 1, and then for the other charges save for the possession of cannabis I am going to impose a two year community corrections order as an aggregate sentence.  The conditions for both the community corrections orders are the standard conditions that no doubt Mr Wilkins - and I would ask him to - advise you of - but you are to be under supervision for a period of two years and to undergo mental health assessment and treatment as directed by the regional manager.

51On the charge of possession of cannabis you are convicted and fined $750 and I give you three months to pay that fine.  The prosecution have asked for a forfeiture order and I will make the forfeiture order of all the material that has been seized and destruction orders for the parcels, and the Cannabis that have been obtained and confiscation under the Confiscation Act 1997.

52That was what you were after, was it, Mr Sprague?

53MR SPRAGUE:  There are four orders, Your Honour, in total.

54HIS HONOUR:  Four?  I have only got three.  I have for a forfeiture order for the firearms, for the weapons and the confiscation order for the Tier 2 goods.  What was the fourth one?

55MR SPRAGUE:  The fourth one should be the disposal order in relation to the cannabis.

56HIS HONOUR:  Yes, I have found that, I have just got that now.

57MR SPRAGUE:  Thank you, Your Honour.

58HIS HONOUR: I declare that had you not pleaded guilty under s.6AAA of the Sentencing Act I would have imposed a six month sentence of imprisonment and a community corrections order, a combination sentence.  I had prepared the two community corrections orders. You have seen them, Mr Sprague?

59MR SPRAGUE:  Yes, Your Honour.

60HIS HONOUR:  Do they look in order to you?

61MR SPRAGUE:  They do.

62HIS HONOUR:  So they are concurrent but they are separate because one is a Commonwealth offence and the other is a State offence.  I will ask you to explain them and get him to sign them.

63MR WILKINS:  I have explained the nature of them anyway, Your Honour, thank you.

64HIS HONOUR:  Mr Fellows, you are required to attend at the Cranbourne Community Corrections Centre within two business days and to be inducted into the system there.  Maybe give them a ring before you do, they might do it by phone, I am not sure what the arrangement is.  There is a phone number there.

65MR WILKINS:  It mentions by phone, for attendance by phone on the actual assessment report, Your Honour, I noticed.

66HIS HONOUR:  Yes.  Any other matters, Mr Sprague?

67MR SPRAGUE:  No, Your Honour, nothing further.

68HIS HONOUR:  I want to thank you, Mr Sprague, for your assistance and your instructing solicitors and also Mr Wilkins, both of you for your comprehensive pleas and sitting late.

69I will have these remarks provided to the parties within about three or four days.  I will revise them and send them to the parties in due course.  As far as you are concerned, Mr Fellows, you can regard yourself as I have taken into account you have been of good character up to age 56.

70You have looked after this woman for the last five years.  You have had the vicissitudes of life with all these accidents, you have been on DSP for the last 13 odd years and that has obviously taken a toll on your health and that provides I am satisfied on the Mr McKinnon  explanation as to why you have just lapsed into doing nothing to regularise all this, in fact you have lost all that connection with your father and that cannot be retrieved but that is that, that is life.

71You are on this supervision for two years so that if you commit an offence in the next two years that carries a term of imprisonment you come back before me.  That carries a three month sentence on its own and so you are now a prohibited person which means if you get caught now with any form of firearm or a weapon that in itself is a further offence.

72You are a prohibited person for five years now so you are not going to be able to get a licence, a firearms licence, for a minimum of five years and so you have got to be very careful in that sense because prohibited person offences now that you know you are a prohibited person carries an extra uplift on the penalty.

73So you have got that and I hope you can keep looking after Ms Old, doing the community a service, doing that notwithstanding all your own problems.  It is late in the day, adjourn sine die.

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