STATE OF TASMANIA v MICHAEL GREGORY FISH 17 DECEMBER 2020
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant, Mr Fish, has pleaded guilty to one count each of aggravated burglary, stealing a firearm or firearm part, and stealing. The facts are that during the night of 21-22 April 2019, the defendant unlawfully entered a residence in Fingal. The occupier was not home at the time, and entry seems to have been gained through the front door which is believed to have been unsecured. The defendant found some of the occupier’s tools, including a crowbar and claw hammer, and used them to prise open a firearm safe which was in a spare room of the home. From that safe the defendant took two 2,000 .22 rounds, 350 12 gauge shotgun shells, 120 .223 rounds, 70 .243 rounds, 12 30.06 rounds, and 4 rifle magazines, all of which matched with rim fire and centre fire rounds that were taken. The defendant also took a bolt for a 6.5 mm rifle and one gold wedding ring. Having done that, the defendant also took the safe which he transported to a vehicle by use of a wheelie bin. The defendant’s identity was revealed through DNA swabs taken from the crowbar and hammer left at the scene. The value of the items taken was $1,750, and nothing has been recovered. On 13 November 2019, the defendant was arrested. When interviewed he declined to answer any questions.
The defendant is now 36 years old. He has a lengthy record of offending starting in 2002 which includes relevant offending. He is presently serving a term of imprisonment, with his earliest release date being 19 March 2021; the latest release date is 16 June 2021. Leaving aside for the moment firearms offences, the defendant has numerous convictions for dishonesty, drug-related and traffic offences. Dishonesty convictions date from April 2016. In total there are two convictions for aggravated burglary, two for burglary, four for stealing, one for motor vehicle stealing, and five for unlawful possession of property. There are convictions for wildlife offences in March 2006, the matters of which he was convicted included possessing and using a firearm, and possessing ammunition, when not the holder of a licence. The defendant’s counsel told me that that was at a time when he was involved with his family in hunting activities. However, about 10 years later, in September 2014, he was convicted of two counts of possessing a firearm when not the holder of a licence, two counts of possessing ammunition when not the holder of a licence and one count of possessing a firearm part. At the same time he was convicted of unlawful possession of property. In April 2016 he was convicted of two counts of possessing a firearm when not the holder of a licence, four counts of possessing ammunition when not the holder of a licence, and of quite a number of other offences including dishonesty, traffic and drug-related matters. The previous suspended sentence was activated and a cumulative term of imprisonment imposed. On 22 November 2019, for a variety of offences, a drug treatment order was made with a custodial part of 10 months. Having incurred a number of sanction days, the order was cancelled on 17 September 2020 and the defendant sentenced to the balance of the custodial part of the order. That, of course, is the sentence presently being served.
Further relevant personal circumstances are as follows. The defendant seems to have had an unremarkable upbringing and, until the time substance abuse overwhelmed him, had a good industrial record. After leaving year 10 he trained in the meatworks industry and ultimately became floor manager in a plant with supervision and training responsibilities over about 100 employees. He acknowledges drinking to excess in his teenage years and using cannabis in early adulthood. This escalated to methamphetamine use when he was 26, having been introduced to the drug by his then partner. Serious addiction followed. His use was daily. That use escalated at one point by way of a coping mechanism following a stressful relationship breakup. He has had periods of abstinence, particularly while interstate. But on returning to Tasmania he fell in with old associates and reverted to heavy methamphetamine use. This, as his counsel described it, was path of self-destruction. The increase in offending from 2016 coincided with that increased drug use. His time in prison on this occasion seems to have given rise to self-reflection. He has avoided illicit substance use. Within the prison he is in a position of responsibility and trust. He has a 9 year old daughter who is presently in foster care. The defendant is very angry with himself for his parenting failures. He maintains contact with the child and is very keen to rehabilitate himself; in particular so that he can maintain that contact and be a good father. He has that incentive and his mother remains supportive of him. As to the offending, I was told that the defendant was unaware that the house he was entering contained a firearms safe. He was looking for whatever he could take in order to obtain money to maintain his drug habit.
It goes without saying that these are serious matters. I say that notwithstanding that what was stolen did not include firearms as such. Although firearm bolts and magazines are mostly not interchangeable between brands, it may be that they end up in the hands of someone who has the relevant firearm. Parliament has made it very clear that stealing firearm parts is a very serious matter. In any event, in this case a very considerable amount of ammunition was stolen. That ammunition, although not a firearm part within the meaning of the Firearms Act, is universal in the sense of being capable of being used in any firearm of the calibre involved. Stolen and unregistered firearms are associated with serious criminal activity. Unloaded firearms can be used to threaten people who are unaware as to whether the firearm is loaded or not. Loaded firearms pose an entirely different and much higher risk. I accept though that the simple monetary value of what was taken was low. General deterrence is an important factor, as is specific deterrence in this case due to a history of relevant offending. I take into account the defendant’s pleas of guilty which were entered immediately after a fourth count on the indictment was discontinued. I take into account the period of time the defendant has been, and is likely to be, in custody.
Mr Fish, I have set out the facts on which the sentence will be based, and the relevant considerations in your case as I see them to be. I accept that this was one incident. I accept that the motivation was to obtain funds to feed your addiction but there does not seem to be anything in your past which would explain the resort to addictive drugs, and the addiction is of no great significance in terms of the sentencing factors. I am satisfied that you have made efforts to rehabilitate yourself and are keen to continue those efforts. I am prepared to provide some relief in relation to the term of imprisonment to be imposed in order to encourage that rehabilitation. You convicted of the crimes and sentenced to nine months’ imprisonment cumulative to the present sentence, the execution of four months of which is suspended on condition you do not commit any offence punishable by imprisonment for a period of 30 months commencing on your release.