Sentence: Combination sentence - 1 year imprisonment with 2 year CCO.
[2]
Adrian Hodges, you have pleaded guilty to multiple firearm charges, as well as two charges of cultivating a narcotic plant and six charges of possessing a drug of dependence. These are listed on one indictment. Because the charges arose from search warrants executed on different dates, there are two case reference numbers.
You have also pleaded guilty to six summary charges, three relate to one search warrant and three related to the other. Therefore they have two different case reference numbers, which are the same two case reference numbers that appear on the front page of the indictment.
The maximum penalties for these offences are as follows:
For Charges 1, 2, 4, 11, 12 and 14, ten years' imprisonment;
For Charges 3 and 13, five years;
For Charges 6, 7, 8, 9 10 and 16, five penalty units if for a small quantity and not for trafficking;
For summary Charges 8, 9, 16 and 17, two years;
For Charges 5, 15 and summary Charge 7, twelve months;
For summary Charge 15, 40 penalty units.
The details of the charges, as set out in the prosecution summary, are as follows:
At the time of the offending you were living with your family in Cranbourne West, and you were running a business as an electrician. You owned 13 firearms, for which you held a licence.
In addition to those firearms, you had recently inherited from your grandmother a collection of firearms which had previously belonged to your grandfather. You had no licence for them, but you told the police that you had intended to register them as required, but had not got around to completing the process. They had been in your possession for about a month.
When police executed the search warrant at your home which led to your arrest, they located a garage which had been converted into what they described as a gun smithing workshop. It contained a lathe, a drill press and other machinery and tools that could be used to manufacture and modify firearms. It was here that 24 unregistered firearms were found and seized, along with thousands of rounds of various ammunition and cartridges, and hundreds of firearms parts, both commercially and privately manufactured.
There were also several gun safes and multiple firearms on display. Police also found schematics for the manufacture of firearms, and a notebook containing a list of firearms with prices.
When interviewed you told police that your machinery did not have CNC capability, meaning the capacity to facilitate firearm construction. You said you use the lathe and drill press to make spare parts for machines in the course of your work. You explained that the firearms collection had come into your possession when your grandmother died. You said the firearm parts seized from your garage were stencils for wall art. You provided a detailed description of all the firearms upon viewing photographs of them.
The firearms were examined forensically and listed with details in Appendix B, as part of the Prosecution Summary.[1] Appendix D is a list of the firearms with corresponding charge numbers. Appendices A, B, C and D are attached to these sentencing remarks.
The various firearms charges are on Indictment C2400804. The CR number for the charges relating to 18 April 2024 is CR-25-00198. The charges are as follows:
Charge 1, one charge of unauthorised possession of a traffickable quantity of firearms;
Charge 2, one charge of manufacturing a firearm without a licence;
Charge 3, one charge of possessing a firearm part for the purpose of manufacturing a category A or category B longarm or part thereof without a licence;
Charge 4, one charge of possessing a firearm part for the purpose of manufacturing a firearm or part thereof without a licence;
Charges 5 to 10 also resulted from the search warrant executed on 18 April 2024. They relate to drug cultivation and possession, and I shall return to those shortly.
Charges 11 to 16 resulted from the search warrant executed on 5 September 2024, while you were on the bail for the initial charges. The CR number for these charges is CR-25-00199. Police located and seized 10 firearms, ammunition, firearm parts, a black dagger and a silver knuckle duster. The charges are as follows:
Charge 11, one charge of unauthorised possession of a traffickable quantity of firearms;
Charge 12, one charge of manufacturing a firearm without a licence;
Charge 13, one charge of possessing a firearm part for the purpose of manufacturing a category A or category B longarm or part thereof without a licence; and
Charge 14, one charge of possessing a firearm part for the purpose of manufacturing a firearm or part thereof without a licence;
Also found in the garage on 18 April 2024 were cannabis plants and other drugs. These were analysed and were found to be 21 cannabis plants weighing 1.5 kilograms and some loose cannabis weighing 21 grams; these are Charges 5 and 6, cultivation and possession of a narcotic plant respectively.
Charges 7 to 10 are each charges of possession of a drug of dependence, also arising from 18 April, and these comprise as follows-
the 1,4 Butanediol in a plastic bottle;
MDMA in the form of 17 red tablets and a black crystal substance in separate Ziploc bags;
Methylamphetamine in the form of a white crystal substance in a Ziploc bag; and
Cocaine in the form of a white compressed powder in a Ziploc bag.
The related summary charges are listed in two groups. Charges 7, 8 and 9 are on CR-25-00198. They resulted from the search warrant executed on 18 April and they are as follows:
Charge 7 - fail to store long arm ammunition correctly;
Charge 8 - possess imitation firearm without exemption; and
Charge 9 - possess prohibited weapon without exemption.
Charges 15, 16 and 17 are the other summary charges, they are on CR-25-00199. They resulted from the search warrant executed on 5 September and they are as follows:
Charge 15 - possess cartridge ammunition without licence or permit;
Charge 16 and 17 - possess prohibited weapon without exemption.
These three charges arose from a search warrant executed at your home on 5 September 2024 while you were on bail for the earlier matters.
[3]
The primary indications that these charges represent a serious example of this type of offending are the number and nature of the firearms located and the evidence suggesting that you were manufacturing firearms for profit. Other matters include their security and whether they were loaded or whether ammunition was nearby.
Your instructions are that you deny any sophisticated or elaborate manufacture of handguns, rather that you admit to trying to educate yourself about metal works and gunsmithing, through tinkering with firearm and firearm related paraphernalia.
You explained that the collection that had belonged to your step-grandfather had been left to your grandmother and then to you. You told Mr Armstrong, the psychologist who assessed you, that your step-grandfather had been a metal fabricator and would build, refurbish and manufacture many of the firearms and firearm parts that police found in your possession. You described your step‑grandfather as having been an engaging man of Romanian origin, who had served for many years in the Soviet military and had been an avid collector of guns. Mr Armstrong posited that because you had been close to him as a source of refuge in a dysfunctional family, you had an emotional attachment to the collection.
You said you took on the collection intending to register the firearms, via a Collector's Licence. You said you had begun the process but had not completed it by the time of the raid, and that the price list found by police was for insurance purposes, secondary to the registration application.
You stated that your drug use at the time had distracted your focus from this task, and had perpetuated your isolation from work and family, resulting in spending more time in the garage tinkering with the firearms, but not for the purpose of selling them or using them illicitly.
Ms Papadinas on your behalf submitted that these explanations should be accepted as the context for the offending, and that they are plausible, given that you held a licence for many years with no compliance issues. Your only previous court appearance was a non-conviction adjournment for having a flick knife in your possession, mistakenly left in a backpack. In other words, you do not fit the profile of a person who might otherwise be in possession of firearms for nefarious purposes.
The further offending while on bail for the initial offences also renders the overall offending more serious, and is an aggravating factor in relation to the second tranche of offences. You told the psychologist Mr Armstrong that following the raid on 18 April you were approached by Mr Al Khaz'Ally and directed to store firearms for him. These were the firearms that were seized by police on 5 September.
You told Mr Armstrong that Mr Al Khaz'Ally knew you possessed firearms and had firearms storage facilities, and he stood over you to store the illicit firearms. He was in fact your drug dealer, and you said you were scared of him, and that you believe he had probably groomed you to participate in the storage. You bought all your drugs from him, except cannabis, which you grew yourself. This adds weight to the submission that you did manufacture guns for profit, but equally adds weight to the likelihood of your dependence on and fear of him.
A further prosecution submission is that several of the seized firearms were stolen, and that this is an aggravating factor, even though there is no suggestion that you yourself stole them.
The circumstances of your possession of the firearms on 18 April amount to a plausible explanation, the charges relating to manufacturing somewhat less so.
However, I cannot safely conclude that your manufacturing activity was for a profit motive, which reduces the gravity of the offending.
The initial offending is not at the high end of the range of gravity. As to the later matters when you were on bail, I take into account your explanation to Mr Armstrong as to your fear of Mr Al Khaz'Ally. I accept Mr Armstrong's opinion as to your psychological frailty, that of having very obvious traits of a Dependent Personality Disorder, manifested in avoiding conflict and disagreement, and amplified by heavy polydrug use.
It is only an explanation and does not remove your criminal responsibility, but has the secondary result of reducing the gravity of the offending to an overall level below the middle of the range.
[4]
Your personal background and mitigating circumstances
[5]
You are a 40-year-old man who was 39 at the time of the offending, with no prior convictions and only one court appearance as already described. Your childhood was marred by emotional neglect and isolation, with what could aptly be described as poverty of nurturing, leading to attachment problems later in life. You spent a lot of time with your maternal grandparents, particularly your step-grandfather. He died around the same time as your parents' separation, when you were in Year 8, and this coincided with an escalation in bullying and social isolation at school.
Nonetheless you did well at school and did an electrical apprenticeship, leading to long-term employment as an industrial electrician for 23 years with one firm. When your employer's wife suffered a stroke, you stepped into a leadership role and effectively ran the business for several months. You had expected to take on a permanent senior role but instead you were retrenched.
You started your own business immediately, but the stress associated with it led you to spiral into drug use and methamphetamine dependency. It was in this context that you failed to complete the gun registration process and complied with the demands made by the co-accused.
He pleaded guilty in the Magistrates' Court to trafficking firearms, and a combination sentence was imposed. Apart from the common feature of being involved illicitly with firearms, there is little else to enliven parity considerations. Your counsel's submission was also for a combination sentence, in contrast to the prosecution submission for a head sentence and non-parole period.
This submission was on the basis of the number of firearms involved, the inference that trafficking was taking place, and the inference as to the manufacturing for profit.
It was partly qualified by the prosecutor Mr Wilson's acknowledgment that you have strong prospects for rehabilitation, and in the absence, in effect, of a criminal record, you would benefit from a Community Correction Order.
Whilst you have been on remand, your wife Nikita Alexander is caring for five children and relying on Centrelink payments to do so. The three older boys, aged 11, 13 and 14 are displaying challenging behaviour which is unusual for them. The eldest child has run away from home back to her biological mother and has required counselling at school. The youngest, aged three has regressed in response to the trauma occasioned by the police raid on the home.
While hardship cannot be taken into account, the anguish caused by your knowledge of the family's circumstances is a matter I take into account, as an additional burden while in custody. Mr Armstrong noted in his report that you have a genuine attachment to the children.[2]
He also noted your awareness that your offending has had a catastrophic effect on the family, and that your genuine remorse and regret will act as a protective factor against any future offending.[3] He said you recognise that your actions placed the community at risk, and has jolted you away from any future association with firearms or drugs.[4]
Mr Armstrong considers you would make a very good candidate for a Community Correction Order, as people with dependent personalities are generally active participants with good compliance. That same trait places you at risk in custody.[5]
A reference has been provided from your mother-in-law, Fiona Alexander, a practitioner at the Supervised Injecting Room in Richmond. She is a former forensic alcohol and drug clinician with experience at Odyssey House and the Neighbourhood Justice Centre. She considers that when released you will do your best to restore your previous good standing in the community and rebuild your role in the family as parent and husband. Ms Alexander believes you have the support of strong family ties and community network, and '...a desire to maintain a lifestyle without the influences that led to his current situation.'
Your wife's grandmother has also written a reference, confirming your previous role as a very involved father. Your 14-year-old son Kurt has been diagnosed with several disorders including Autism, and Dr Ogilvie has written confirming this, and that Kurt has struggled with your incarceration.
Whilst in custody you have completed a very large number of courses, including several parenting courses, which tend to indicate a strong motivation to improve and succeed once you are released.
Having pleaded guilty you are entitled to a discount on your sentence, acknowledging its assistance to the criminal justice system by avoiding the expense and inconvenience of a trial, and avoiding the need for witnesses to give evidence.
It can also be taken into account as an indication of remorse, which you have expressed elsewhere, and which I accept as genuine. Together with Mr Armstrong's opinion and the beliefs of your referees, I am satisfied that your remorse bolsters your prospects for rehabilitation, which appear to be good, subject to treatment for drug dependence.
You have been assessed as suitable for a Community Correction Order.
My conclusion is that your time spent in custody in combination with a Community Correction Order is an appropriate punishment and takes adequate account of the need for general deterrence and protection of the community. Specific deterrence is also likely to be achieved by this disposition, given Mr Armstrong's observations and the absence of any real criminal history, or any entrenched anti-social or criminogenic tendencies. Your acute awareness of your family's great difficulties during your time in custody will doubtless serve as a strong motivation to reform.
The large number of firearms and parts and the drug charges together comprise a total of 22 charges, with a range of separate charges and maximum penalties. As already described, the first 10 indictable charges and three summary charges occurred on 18 April and the second set of indictable and three summary charges occurred on 5 September.
Logic would indicate a need to order some cumulation to reflect the second set of offending, which occurred while you were already on bail for the first set. That would require a sentence longer than 12 months and it would be possible to sentence you to a head sentence which was logically consistent with that circumstance, and to fix a non-parole period which would allow you to be released on parole very soon.
However, that would deny you the opportunity for the community service and drug treatment available as part of a Community Correction Order. This is a case where the principles of totality and parsimony call for real recognition in order to reach a satisfactory outcome, a sentence which punishes appropriately and protects the community in the long term. Its deterrence value would lie in the prison term and the lengthy Community Correction Order.
Mr Hodges, I sentence you as follows and would you stand now please:
For Charges 1, 2, 4, 11, 12 and 14 - 12 months' imprisonment;
For Charge 13 - nine months;
For summary Charges 8, 9, 16 and 17 - eight months;
For Charges 3, 5 and 15 - six months;
For summary Charge 7 - four months;
For Charges 6 to 10 inclusive and Charge 16 - an aggregate fine of $1,000.00;
For summary Charge 15 - a fine of $500.00.
All sentences are to be served concurrently. This results in a total effective sentence of 12 months.
I also impose a Community Correction Order which will begin as soon as you are released and will last for two years. You will be under supervision and you must perform 60 hours of unpaid community work. That is a modest number of hours of work hours, because the main focus of the order is the drug treatment, for which you must be assessed. Any time you spend in treatment will be credited towards your work hours.
If you were to offend again, in any way that attracts a prison sentence, you may have breached the order and if so, you must return to court to be re-sentenced by me.
If you had pleaded not guilty to these charges, I would have sentenced you to three years' imprisonment with a non-parole period of two years.
The prosecution seeks three orders for the disposal of drugs and an order for the forfeiture of the list of firearms and related items referred to in the attached schedule. Is there any opposition to those orders?
MS PAPADINAS: No, Your Honour.
HER HONOUR: No. Thank you. I will make those orders.
You have been in custody in what we call pre-sentence detention for 419 days. Of those days, I declare 365 days to be reckoned as already served. That leaves 54 days which remain as undeclared time served.
Now the Community Correction Order which will be available to be signed now, requires you, Mr Hodges, as soon as you are released to attend the Cranbourne Community Correctional Services Centre within two working days of your release; that is at 176 Sladen Street, Cranbourne and you must attend by 4 pm on the outside time of the second working day. That's clear. If it's not, I'm sure Ms Papadinas will explain it.
I want to say something about the structure of the indictment in this case. I took some care during the sentencing remarks to identify by CR number and indictment number which charges fell under which heading. That it has not been a difficulty for me in sentencing, but the structure of the indictment comprising two separate CR numbers, with the two separate lots of related summary charges, meant that the task was a huge one in terms of getting it onto CLMS, which has to be done of course as a record. It took the efforts of three experienced associates to do that and in fact, someone who has long experience as an expert in CLMS, so it was no mean feat. I just say this, I know it can be done and apparently under the Criminal Procedure Act it is something that is possible, but all I can say is it would be much better if that structure were to be avoided in the future.
Are there any other matters?
MS CAVKA: Nothing arising, Your Honour.
[6]
Three (3) plastic boxes containing assorted firearm parts
[7]
Five (5) rounds of .57 calibre cartridge ammunition and one spent cartridge
[8]
Two (2) rounds of .455 Calibre cartridge ammunition