Powell v The Queen [2015] VSCA 93

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 The appellant pleaded guilty in the County Court at Melbourne to having trafficked in a drug of dependence, possession of a substance, material or equipment relating to trafficking in a drug of dependence, possession of a drug of dependence, and being a prohibited person in possession of a firearm. He also pleaded guilty to three summary charges involving possession of a prohibited weapon.

Trafficking in a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 (Vic) s 71AC]

Possessing a substance, material or equipment relating to trafficking a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 (Vic) s 71A]

Possessing a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 (Vic) s 73]

Prohibited person in possession of a firearm [Firearms Act 1996 (Vic) s 5(1)]

(Jennings .22 calibre handgun and 12 gauge shotgun)

Possess prohibited weapon without exemption or approval [Control of Weapons Act 1990 (Vic) s 5AA]

Possess prohibited weapon without exemption or approval

Possess prohibited weapon without exemption or approval

4 years' imprisonment with a non-parole period of 2 years 6 months

3 On 23 February 2015, Ashley JA granted the appellant leave to appeal against sentence on the following ground:

Ground 2. The sentence imposed on charge 4 and the total effective sentence and the non-parole period are manifestly excessive.

4 Leave was refused in respect of ground 1 of the appellant's original Notice of Appeal. The appellant did not elect to renew his application for leave in respect of that ground.

5 At about 7.50 am on 20 September 2013, police executed a search warrant at a property in Lindsay Avenue, Sunbury. The property belonged to the appellant's parents, but was being occupied by the appellant who was paying them rent. He lived there along with his de facto partner, his 9 year old stepson, and his 5 year old daughter.

6 The appellant was present at the property when the warrant was executed. He was observed placing a sawn-off, 12-gauge shot gun on the kitchen table as the police gained entry to the house. The gun was seized by police, and found not to be loaded (charge 4). The appellant was, at the time, and continues to be, a 'prohibited person' within the meaning of s 3 of the Firearms Act 1996 ('Firearms Act').[1]

7 The police then conducted a search of the premises. The following items were located:

• a zip lock bag containing 23 grams of methamphetamine. The appellant said that he had paid $4,000 for the drugs, and initially told police that they were for his personal use (charge 1);
• a glass measuring jug containing a white powder, filters, cold and flu tablets, caustic soda, xylene, hydrochloric acid, and various other equipment and paraphernalia which the appellant admitted to having acquired for the purpose of an (unsuccessful) attempt to cook methamphetamine (charge 2);
• a small purple container with five brown ecstasy tablets in it (charge 3);
• an unloaded Jennings .22 calibre handgun down the side of a couch (charge 4);
• a butterfly shaped double edged knife, and a double edged axe displayed on the kitchen wall. The appellant claimed that he purchased these weapons at the Highpoint shopping centre (summary charges 10 & 11);
• a set of knuckle dusters displayed in a glass cabinet in the hallway. The appellant also claimed that he purchased this weapon at the Highpoint shopping centre (summary charge 12).

8 In addition, police located an ammunition clip for the Jennings handgun, and four hollow point .38 bullets. However, those bullets could not be used with the .22 Jennings handgun. No other ammunition capable of being used with either of the two guns was found on the premises.

9 Police also located a sheet of paper hidden in a hole next to the fridge, along with $6,800 in cash. Written on the sheet of paper was a list of names with corresponding numbers next to them. The appellant admitted that he had, about six months previously, been selling methamphetamine and marijuana to friends, and that the information on the paper related to those transactions. No charges were laid in relation to those activities. Rather, the trafficking offence the subject of charge 1 was expressly confined to the 23 grams of methamphetamine located by police during the 20 September search.

10 In the course of his record of interview, the appellant said that the handgun, which he had purchased some years earlier, did not work. As regards the shotgun, he said it had been given to him six months previously by a person who owed him money, and he did not have any ammunition for it. He said that he kept the shotgun in the house for protection, specifically in the event of a 'run-through' by bikies, who had been known to target those involved in trafficking drugs.

11 The appellant said that the ecstasy tablets had been given to him by a friend. He said that he did not intend to sell them, and that he would eventually have given them away. He admitted that the various drug paraphernalia located in the house had been acquired for the purpose of attempting to cook methamphetamine.

12 The appellant was remanded to appear before the Magistrates' Court on 23 October 2013. He was granted bail on that day. The matter was listed for contested committal on 11 June 2014. However, the appellant pleaded guilty prior to the committal taking place.

13 The sentencing judge noted that the appellant was aged 30, and that he had some prior convictions. These included offences in 2009 of possessing a prohibited weapon (for which he received a $750 fine) and possessing amphetamine ($500 fine without conviction), and a 2010 conviction for unlawful assault, for which he received a community based order. He had also appeared before the Magistrates' Court on at least three occasions for breaching the community based order. However, the sentencing judge considered that the appellant's criminal history was 'not extensive', noting that he had never previously been imprisoned.

14 His Honour said that there were several factors in mitigation which he had taken into account. First, he had regard to the appellant's plea of guilty, which he accepted was entered at an early stage, and evidenced remorse. Secondly, he noted that the appellant, along with his partner, had the care of two young children. Thirdly, he accepted that the appellant and his partner suffered from a methamphetamine addiction, and that the appellant had engaged in trafficking in order to support that addiction. Fourthly, his Honour noted that, as a result of the offending, the appellant's parents were required to pay $22,000 to the local council to cover the costs of an environmental clean-up of the home. His parents were forced to sell the house as a result. It was submitted on behalf of the appellant at the plea that the impact that his offending had had upon his family was a matter which bore upon his remorse, and mitigated to some extent the need for specific deterrence.

15 As against these mitigating factors, the sentencing judge assessed the appellant's prospects of rehabilitation as 'no better than cloudy'. That assessment was based on his failure to comply with community based orders in the past, and the lack of any evidence of him having taken steps to deal with his drug problem since being arrested.

16 The sentencing judge described the appellant's offending in relation to the drug trafficking charge as being at the 'lower end of the range'. His Honour also considered the possession of firearms to be a 'serous offence'. Moreover, he said that because the possession of those firearms was associated with ongoing criminal activity (namely, drug trafficking), a more severe sentence for that offence was warranted.

17 His Honour relied in that regard on what was said by Redlich JA in Berichon v The Queen:

The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in R v Graham and Armistead v The Queen. The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence. The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order. Such sentences will be appropriate where the firearm is for example possessed in the context of a criminal activity to provide security or as a means of enforcement. The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.[2]

18 Finally, the sentencing judge considered that there was a need for specific deterrence in light of the appellant's past history. His Honour also considered denunciation to be a relevant factor.

19 The appellant did not contend before this Court that that any specific error could be identified in the approach adopted by the sentencing judge. However, he submitted that the sentence imposed on charge 4 was manifestly excessive in all the circumstances. In that regard, he referred to several decisions of this Court which were said to be indicative of current sentencing practices for the offence of possessing a firearm.[3]

20 The appellant submitted that, although the sentencing judge had referred to his cooperation with police, early plea of guilty, remorse, and prospects of rehabilitation, each of these factors was not given sufficient weight.

21 In relation to charge 4, the appellant relied upon the fact that one of the firearms was not functional, neither of them was loaded, he did not possess ammunition for either gun, and that he had not used or sought to use the firearms as an integral part of any other criminal activity. He also relied upon his lack of prior convictions for violence involving the use of a weapon, and his relatively clean record regarding violence of any kind. Lastly, the appellant noted that his prohibition from possessing a firearm arose as a result of a previous, expired, intervention order. This was said to make his offending somewhat less serious than would have been the case had his prohibition arisen as a result of, for example, past firearms offences.

22 The Crown submitted that the sentence imposed on charge 4 was clearly appropriate having regard to the importance of specific and general deterrence, the objective gravity of the offending, the appellant's modest but relevant prior criminal history, and his uncertain prospects for rehabilitation. It also pointed to the fact that the sentencing judge had taken into account each of the factors raised in mitigation at the plea hearing.

23 More specifically, the Crown submitted that the sentencing judge was correct to determine that the firearms were possessed for a criminal purpose, or were otherwise associated with ongoing criminal activity. As such, the offending fell into the more serious of the two categories referred to in Berichon[4] and the other authorities.[5] In that regard, it submitted that the focus of the criminality for this offence is the purpose for which the relevant firearms were possessed, and their relationship to criminal activity. The functionality or otherwise of the particular weapons was said, to that extent, to be a somewhat peripheral matter.

24 As to the authorities referred to by the appellant, the Crown submitted that none of those cases demonstrate error in the sentence imposed. The Crown also emphasised the fact that charge 4 concerned the possession of two firearms rather than one, as was the case in some of those authorities.

25 In our opinion, ground 2 is made out. When one considers the sentences imposed in other, roughly but arguably comparable, cases, the sentence of 2 years seems to us excessive, and manifestly so. We note, for example, that in Armistead v R,[6] a sentence of 2 years' imprisonment for this offence was reduced to 6 months, albeit on the basis of double punishment. The offending in that case was undoubtedly far more serious than the present case, and it must be remembered that the maximum penalty there was 15 years rather than 10.[7] Perhaps more to the point, in terms of comparability, is R v Graham[8] where a sentence of 18 months' imprisonment was reduced to 7 months, albeit the offending in that case was, as the Crown submitted before us, at a distinctly lower level than that of the appellant.

26 There are, in our view, several factors in relation to the appellant's offending which distinguish it from the cases where a more severe sentence has been imposed. For example, the evidence before the Court was that the handgun was not functional (by which we interpolate that it could not be fired - not merely that it was unloaded), and that the appellant did not possess ammunition for either that gun or the shotgun. The appellant admitted to having possessed the shotgun for the purpose of protecting himself in the event of a 'bikie run-through'. However, we consider it to be of some mitigatory significance that the shotgun was acquired some six months previously, and in a context not directly related to the particular offending which was the subject of charge 1.

27 This was also not a case in which the appellant could be described as having an extensive criminal history. He had no previous convictions for firearms offences, and was a prohibited person for the purposes of the legislation by virtue only of a past intervention order. He also had a very limited history of violence of any kind. As the sentencing judge noted, the appellant had never previously been imprisoned.

28 The appellant submitted before this Court that it would be appropriate to consider the possibility of imposing a Community Correction Order ('CCO') at this stage, back-ended on to the period of imprisonment that he had already served. It was noted that the sentencing judge could not reasonably have been expected to consider a CCO when he sentenced the appellant because, at that time, the relevant legislation only permitted a CCO to be combined with a prison sentence of three months or less duration. That is no longer the case.[9] It was also submitted on behalf of the appellant that the landscape regarding the use of CCOs had changed since the guideline judgment of this court in Boulton v The Queen.[10]

29 In our opinion, the appellant's submission cannot be accepted. The offending in this case was of a gravity, scale, and scope that went beyond what would have made a CCO appropriate, even if combined with a term of imprisonment of the length the appellant has already served.

30 Having regard to all the circumstances, we consider that a term of 15 months' imprisonment is appropriate for the offending encompassed within charge 4. Accordingly, we would allow the appeal, and set aside the sentences imposed on all charges below. In lieu thereof we would sentence the appellant to 15 months' imprisonment on charge 4, and affirm all other sentences and orders. The sentence on charge 4 will be the base sentence. With orders for cumulation in the same terms as were fixed below, the total effective sentence will be 2 years. We will fix a non-parole period of 15 months.

[1] The appellant is deemed to be a prohibited person under the Firearms Act as a result of him having been the subject of an intervention order under the Family Violence Protection Act 2008 in respect of his de facto partner. That intervention order expired on 5 November 2010, with the consequence that the appellant remained a prohibited person for a period of five years from that date: Firearms Act s 3 (sub-paragraph (c) of the definition of 'prohibited person').

[2] [2013] VSCA 319, 7-8 [26] ('Berichon'). See also R v Graham [2007] VSCA 252; (2007) 178 A Crim R 467, 470.

[3] Berichon [2013] VSCA 319 (single charge of possessing an unregistered firearm, a loaded revolver in connection with a conspiracy to cause serious injury, sentenced to 3 years and 6 months); Armistead v The Queen [2011] VSCA 84 (two charges of armed robbery and one charge of possessing an unregistered firearm, an imitation handgun which was used in armed robberies, total effective sentence of 9 years, sentence of 2 years imposed in relation to firearm offence to be served wholly concurrently, sentence for firearm offence reduced on appeal to 6 months on basis that sentencing judge had offended rule against double punishment); R v Rosenow [2007] VSCA 265 (two charges of possessing an unregistered firearm (maximum penalty 15 years), sentenced to 16 months and 6 months respectively, one charge of possessing a registered firearm (maximum 10 years), sentenced to 6 months, total effective sentence for firearms offences 16 months); R v Graham [2007] VSCA 252; (2007) 178 A Crim R 467 (one charge of possessing an unregistered .22 short-calibre target pistol, gun had been kept in safe at appellant's home for protection purposes unrelated to criminal activity, 18 months reduced on appeal to 7 months); Lipp v R [2013] VSCA 384 (sentence of 3 years and 6 months for possession of an unregistered firearm held not to be manifestly excessive, although the circumstances surrounding its commission were infinitely more serious than those in the present case). It should be noted that, with the exception of one of the charges in Rosenow, each of the cases referred to above concerned the offence of being a prohibited person in possession of an unregistered firearm under s 5(1A) of the Firearms Act, which at the time carried a maximum penalty of 15 years. Section 5(1A) was repealed in 2012. The appellant, by contrast, was convicted of being a prohibited person in possession of a firearm under s 5(1), which carries the lesser maximum penalty of 10 years.

[4] [2013] VSCA 319.

[5] R v Graham [2007] VSCA 252; (2007) 178 A Crim R 467; Armistead v R [2011] VSCA 84.

[6] [2011] VSCA 84.

[8] [2007] VSCA 252; (2007) 178 A Crim R 467.

[9] See Sentencing Amendment (Emergency Workers) Act 2014 s 18.

[10] [2014] VSCA 342.