STATE OF TASMANIA v JOSHUA ROBIN OAKLEY 28 JUNE 2024
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Oakley, the defendant, has pleaded to guilty to two counts of possession of a firearm when subject to a firearm prohibitions order, and two counts of possessing a prohibited firearm when not the holder of a licence of the appropriate category. By way of s 385A of the Criminal Code, I am also dealing with his pleas of guilty to summary offences of possessing a prohibited firearm to which a licence may not be issued, unlawfully possessing a dangerous article in a public place, possessing ammunition when not the holder of the appropriate firearm licence and two charges of breaches of bail where the contraventions involve being in possession of firearms or ammunition. The facts are first, that on 17 March 2015, the defendant was served with a firearms prohibition order preventing him from possessing or using a firearm. The order took effect on that date and remained in force at all relevant times. On 17 December 2021, the defendant was bailed to appear in this Court on charges under the Criminal Code and the Firearms Act. He was subject to conditions he immediately forfeit to police any firearm or ammunition in his possession, and that he not be in any possession of any firearm or ammunition during the period of bail. Nearly 12 months later, he was made the subject of a further bail order in relation to other offending, conditions of which were similar to those which I have just outlined. On 3 January 2023, police went to an address in Granton in relation to a murder investigation. They were notified by the occupants of the house next door to the murder scene, that they had found a firearm in their backyard. Investigations ensued. The firearm was a 12 gauge double barrel shotgun which had been shortened. It was sent to Forensic Science Services Tasmania for DNA testing, and the defendant’s DNA was found on that firearm in five separate locations including parts of the barrels, the fore-end and trigger guard. It is common ground that the firearm was used in the homicide but the State does not assert that the defendant had any involvement in the homicide, nor does it assert that he was involved in the provision of the shotgun to anybody so as to be used in the homicide. On 11 January 2023, the defendant was arrested for being in possession of the firearm in contravention of the prohibition order. When searched, a foldout knife was found in his pocket. Later that day, a search was carried out at the defendant’s home. During the search police found the following items:
- One gel blaster imitation of a 5.56 mm calibre Remington Arms Model ACR, select- fire rifle.
- One gel blaster imitation of a Military Armoured Corporation sub machine gun with attached imitation sound suppressor.
- A gel blaster magazine.
- A .308 rifle cartridge.
When interviewed he denied having had anything to do with the shotgun. He said he did not realise that gel blasters were classified as firearms and he regarded them as kids’ toys and said that they did not belong to him. He said that he did not know if the magazine or cartridge were his. As to the knife, he said that he had it in his possession for personal safety. He admitted that he was aware of the prohibition order, was aware that he was not to be in possession of any firearm and was also aware of his bail conditions. He commented that he used a lot of drugs and that the drugs distorted his memory. As to the shotgun, the State’s simple assertion is that the defendant possessed it at some stage between 17 March 2015 and 3 January 2023 in unknown circumstances. It is not asserted that the gel blaster firearms were the defendant’s. The defendant has spent various times in custody which can be taken into account in relation to these matters. In particular, he has been in custody since 19 September 2023, and remains in custody. The total credit is 288 days.
The defendant is now 40 years old. He has a very extensive record of previous offending, commencing in 2003. By and large the offending is drug and firearm related, interspersed with numerous offences of dishonesty. There is a significant amount of firearm offending. He has been the subject of variety of sentencing options including suspended and actual terms of imprisonment. There has been a number of re-sentencing exercises. On 15 October 2020 for a miscellany of offending including quite a number firearms offences – some similar to the present offending – he was sentenced by way of two global sentences to a total of 30 months’ imprisonment, the execution of a total of 12 months of which was suspended on conditions for three years, the suspended parts being nine months and three months There is an application activate the two parts of the sentences held in suspense. As to the defendant’s personal circumstances, it appears that there were no adverse factors affecting his upbringing. He reported that he was raised in a loving and supporting family environment free from all forms of abuse, and his family home was a drug free environment. He first commenced the use of illicit substances at the age of 12, when he started smoking cannabis with older negative peers, including his brother. He was unable to identify any specific reason for his continued drug use, other than association with pro-criminal companions. By the age of 15 he was using cannabis on a daily basis, and at the age of 20 started to use ecstasy. This initially started after going through a temporary breakup with his long term partner and mother of his children. In turn, that use increased considerably over time until he was eventually sentenced to imprisonment for drug trafficking. When released his use turned eventually to methylamphetamine, primarily due to the availability of that drug. He has been heavily addicted for some time. This is reflected in the nature of his offending. He attributes his frequent offences in relation to firearms to paranoia. He says he obtained firearms for self-protection. I was also told that he obtained firearms for exchange for drugs, or simply kept them on behalf of others in exchange for drugs. A CMD report indicates dangerous levels of substance abuse and consequent mental health issues. More recently he has expressed his willingness and desire to attempt to overcome his addiction and to be involved in rehabilitation programs to that effect. I have three CMD reports, two provided for a magistrate, the third dated 26 June 2024 by way of a more recent update, prepared at my request. Notwithstanding the significant earlier concerns, the CMD team is now satisfied that the defendant is both eligible and suitable for a drug treatment order. The intention is for him to enter residential treatment as soon as practicable.
Breaches of regulatory laws in relation to possession and use of firearms are serious matters. Parliament has created some indictable offences relating to possession and use. Unregulated firearms in the community are very often linked to serious criminal conduct. The use of the shortened shotgun used in the homicide provides an example. That the defendant was made the subject of a firearms probation order speaks for itself. Such orders are made if the Commissioner of Police forms the opinion that a person is unfit, in the public interest, to possess or use a firearm. The defendant has shown continuing complete disregard for that order and firearms laws in general, and previous court sanctions for its breaches. Hi record might suggest an unhealthy fixation in firearms. His general contempt for firearms laws needs to be condemned. Factors of attempting to deter others, as well as persuading this defendant from future such offending, are prominent factors. That said, I take into account that the five firearm possession charges relate to three firearms. I accept that he defendant took the view that the gel blasters were not firearms. There may be some debate about that issue in other jurisdictions but they are clearly firearms in this State. Particularly with the appearance these two particular firearms had, being replicas of the real weapons, they are capable of not only frightening people but of causing physical harm. Although the defendant pleaded guilty to the offences with which I am dealing, they were not early pleas but they were entered almost immediately after a trial on the indictment miscarried. The State then indicated it would not proceed with one of the five counts on the indictment about which there was debate as to whether it was truly a toy or not. I note that shortly before that trial, an earlier attempt at a trial was aborted. But ultimately the pleas have some utilitarian value. Both in 2008 and 2015, the defendant was assessed as unsuitable for a drug treatment order. That has now changed and he has family support. I accept that after all this time, he is sufficiently motivated to squarely address his substance abuse and addiction. I consider it appropriate to make a drug treatment order bearing in mind that there is a custodial part all or some of which will have to be served in the event of a breach. In fixing the custodial part factors of deterrence are prominent, particularly given the defendant’s very casual, if not disdainful, attitude to firearms laws and court orders. That, of course, includes in this case, breaches of bail relating to conditions of firearms possession. I recognise that in all of this, much may come from his drug use and addiction.
Mr Oakely, I have set out the facts, your personal circumstances and what I see to be the relevant considerations. First, in relation to the suspended sentences, the law is that I must activate those sentences unless it is unjust to do so. No submission was made to the contrary, and I do not consider it unjust. However given what I propose to do in relation to the drug treatment order, I think it appropriate to order that a substituted sentence take effect in place of one of the suspended sentences, taking into account the period of time you have spent in custody. The suspended part of nine months is activated to commence on 14 September 2023. As to the three months, I substitute a sentence of three months, cumulative to the nine months, but suspend the execution of the balance of that three months from today on condition that you commit no offence punishable by imprisonment for a period of 18 months following your release from prison. As to all present offences before me you are convicted, and subject to your agreement, I make a drug treatment order by which you are sentenced to a term of imprisonment of 12 months, all or part of which you are not required to serve unless ordered to do so, or if the order is cancelled. That order will contain the core conditions provided for in the Sentencing Act and they will be set out in writing for you. As to the core conditions set out in paragraph (b) of s 27(G)(1), which requires attending a court whenever the court directs, the first directed appearance which you must attend is that which will first be notified to you by a court diversion officer or case manager after you have been released from prison. You will have to report to a court diversion officer at 75 Liverpool St, Hobart within two clear working days of your release. Additional conditions of the order are as follows, as recommended by the CMD team:
- You must not use, or associate with anyone who uses, any illicit drugs or substances, including synthetic or unidentified drugs or substances, and any other mind or mood altering drugs or substances.
- You must not use any prescription medication unless approved and prescribed by a treating doctor or pharmacist, and must use such medication only in accordance with the directions.
- You must not consume alcohol and you must submit to breath testing as directed by a court diversion officer, case manager or police officer.
- You must live at [address], not change that address without the prior approval of a court diversion officer, case manager, or a court and you must be present at that address between the hours of 9pm and 7am each day unless expressly authorised by a court diversion officer or case manager.
- You must maintain the use of a working mobile phone at all times, and inform the court diversion officer or case manager within 24 hours before any changes to contact details.
- You must obey all directions of a court diversion officer, case manager, or other CMD case worker including with respect to attending case management appointments, counselling sessions, urine analysis and any other appointment or assessment required.
[The defendant consented to the making of the order] I make the drug treatment order in the terms I have outlined. I am satisfied that there is a power to order the forfeiture of all the items under various statutes, and I order that the three firearms – the shotgun and the two gel blasters – the round of ammunition, the magazine and the knife all be forfeited to the State of Tasmania.