STATE OF TASMANIA v BEAU-NATHAN JON GILCHRIST ESTCOURT J
COMMENTS ON PASSING SENTENCE 24 JULY 2020
The defendant, Beau-Nathan Jon Gilchrist has pleaded guilty to three indictable charges of stealing firearms, dealing in firearms and dangerous driving.
I have also granted an application under s 385A of the Criminal Code, to have pleas of guilty accepted to the following summary offences, referred to in the Crown Facts. They are complaint 5820/2019 – one count of burglary and one count of stealing; complaint 5822/2019 – one count of possess ammunition without a licence, one count of possessing a controlled drug, one charge of driving without a licence, one charge of possessing a housebreaking implement, one charge of possessing ammunition without a licence, one charge of possessing a firearm without a licence, one charge of possessing a firearm part without a licence; on complaint 7007/2019 – one charge of breach of bail, one charge of possessing ammunition without a licence, another charge of breach of bail, a charge of possessing a firearm without a licence and another charge of breach of bail; complaint 11170/2019 – one charge of evade police (aggravated circumstances); complaint 11171/2019 – one charge of driving without a licence and one charge of breach of bail.
On 24 June 2019, the defendant was intercepted by police. His vehicle was searched and a duffle bag was found which contained black tape, a red bandana, 4 knives, yellow/black gloves and 2 pairs of pliers. The defendant was searched and was found in possession of a shotgun shell, 5 x .22 rounds, a snap lock bag of ice, 2 pairs of scissors and small torch and some gloves. He was arrested and taken to the Bridgewater police station.
At the police station the defendant’s mobile phone was seized and police saw photographs of several firearms. One of those firearms was identified as a .308 rifle that was stolen from Pontville.
Due to the nature of the photographs found on the phone, a telephone warrant was obtained for the defendant’s house. There police located 3 wooded firearms stocks, 1 x .22 round, a metal homemade firearm and 2 homemade firearm bullets. After the search was completed the defendant was detained whilst police carried out further investigations which included conducting a search of another Gagebrook property. During the search of that property police located 2 magazines that matched the .308 rifle, a bolt for the .308 rifle and a quantity of .308 ammunition.
Police also seized a CCTV hard drive from that property. The footage was examined and the accused was depicted arriving at that property on the night the firearm was stolen from Pontville. He was with two others. One, a co-offender, was carrying a rifle bag. The defendant was carrying other items.
CCTV footage was also obtained from an address near the Pontville property. The footage shows a vehicle driving into an adjacent street. The defendant and his co-offender, can be seen in the footage.
As a result of being arrested the defendant’s mobile phone was seized. A preliminary search of the phone identified a number of text messages and photos that suggested the defendant was involved in offering firearms for sale. These included a shortened .22 magnum rifle, a Luger like handgun and a home-made firearm.
The defendant has never held a firearm licence. None of the firearms have been recovered. The evidence with respect the firearms arises from the messages and photographs sent by the defendant.
The Crown asserts that the defendant was dealing in firearms by possessing them for the purpose of sale and selling firearms by offering, and/or exposing them for sale. It is not the Crown’s case that the defendant in fact sold any firearms.
At 9:30pm on 3 November 2019, police were on duty in the Lindisfarne area when they observed a white Commodore sedan, travel up Begonia Street from the Flagstaff Gully area. They activated the lights and sirens of the police vehicle and were about 30 metres behind the Commodore when it slowed almost to a stop. The Commodore then suddenly accelerated down Begonia Street at about 70 km/h. Begonia Street is a sign posted 50 km/h zone, with a number of speed humps along the stretch of road. The defendant slowed down as he approached the speed humps. The Commodore travelled right on to Malunna Road from the incorrect side of the road and continued across Beach Street. It increased its speed to approximately 100 km/h as it travelled across Boatta Road without slowing or clearing the intersection. Malunna and Boatta Roads are both 50 km/h zones.
The police vehicle slowed to the speed limit and observed the Commodore continue to accelerate away at an approximate speed of 130 km/h. The vehicle crossed over Lincoln Street at this speed without slowing or clearing the intersection. Police set up road spikes in the area but they did not see the vehicle again.
On 13 November 2019, the defendant was arrested on unrelated matters. Acting on information that had been conveyed to police that the defendant was the driver of the Commodore, he was interviewed by police about the incident.
At the time of driving it was dark, however the area covered by the defendant was well lit as a result of street lighting. The traffic was moderate. The defendant had one front seat passenger in the vehicle.
The defendant is 25 years old, 24 at the time of the offending. His parents separated when he was 7 years old due to family violence perpetrated by his father against his mother. His father was a former military member, who joined a criminal organisation after leaving the military. His early memories are of speaking to his father on the telephone whilst he was in prison. He recalls his father consistently being in prison for a variety of offences throughout his childhood. Despite this, he looked up to his father and lived with him for a year following his parents’ separation. His father was then violent towards him.
As a teenager, he began spending time at his father’s house using drugs. His drug use and involvement in criminal activity were strongly encouraged by his father. His offending as a youth reached the extent where he spent 2 months in Ashley Youth Detention Centre in 2011. He then received a suspended detention order in 2012, with which he complied.
What followed was a period of stability with comparatively little offending. He ceased all drug use and did not appear in court again until he was convicted of modest drink driving and driving offences in 2015, then unlicensed driving in late 2016, almost 2 years later. During this time he completed his education, began employment, met his partner and had children. He was employed for 4 years as a scaffolder for Connect Safety Solutions. He was involved in positive recreation, riding race horses and working in stables.
He then committed a range of offences in 2019, including those I am dealing with today. From the middle of 2018 until he was remanded in custody in December 2019, his life was characterised by heavy methamphetamine use. A very close friend died in a motorcycle accident in 2018 and he was offered methamphetamine at the wake, which he took. He had not used amphetamines for a number of years and quickly became addicted. Shortly thereafter he lost his long term employment as a scaffolder. He began to use methamphetamine daily, spending up to $150 per day. Before this time, he had no history of drug related offending as adult. He has not used illicit substances since being in custody. He will have had a long period of abstinence in preparation for ultimately being released.
In September 2019, he was sentenced to a corrections order including with a condition that he complete the EQUIPS addiction program, but had little opportunity to engage before returning to custody in December 2019.
I accept that he did not keep the firearm, but he did keep other items stolen in the course of the burglary. He does not have any history of violent offending or offending involving the use of firearms. His judgment was heavily impaired by his drug use. His motivation for the crime of dealing in firearms was related to his drug use, in that he offered the exchange of firearms for drugs. The dangerous driving and evading police was directly related to his drug use, in that he was under the influence of methamphetamine and driving for the purpose of obtaining more of that drug.
He has pleaded guilty to all of these charges and is entitled to credit for that. He has been in custody on the matters before me today since 3 March 2020.
I was asked, and I agreed to obtain a pre-sentence report as to the defendant’s suitability for home-detention and also an assessment as to suitability for a drug treatment order.
The defendant is assessed as suitable for a drug treatment order and unsuitable for home detention.
I will first sentence the defendant for the offences of dangerous driving and evading police.
As is well understood now, sentences for dangerous driving have increased over recent years for obvious reasons. And I am required to sentence separately for the offence of evading police. This was clearly a case where the dangerous driving was in aid of evading police, although the dangerous driving itself was by no means of the gravest kind. On the contrary, it is accepted by the Crown that it was towards the lowest end of the scale of cases that present to this Court.
The defendant is convicted on both those counts and is sentenced to two months and one week imprisonment on each count, backdated to 3 March 2020 and to be served cumulatively. The defendant is also disqualified on each count from holding or obtaining a driver’s licence for a period of 12 months, with such periods of disqualification to be cumulative and to date from the end of any current period of disqualification.
The defendant is also convicted of each of the other offences to which he has pleaded guilty. Noting the very serious nature of stealing and dealing in firearms, but taking into account the defendant’s pleas of guilty and his cooperation with police, I impose a single sentence of two years’ imprisonment. To be served cumulatively to the sentences I have just imposed, but which will not be required to be served if the defendant complies with the terms of the drug treatment order that I am about to make.
Mr Gilchrest, I am satisfied, on the balance of probabilities, that you have a demonstrable history of illicit drug use, and that illicit drug use contributed to the commission of the crimes with which I am now dealing. I consider that were I not making this order, I would have sentenced you to a term of imprisonment and would not have suspended the sentence, either wholly or in part. I have considered the contents of the Drug Treatment Order Assessment Report provided to me. I note that you are not subject to a parole order under the Corrections Act or another drug treatment order, and that no proceedings are pending against you in any court for a sexual offence or an offence involving the infliction of actual bodily harm. I am satisfied in all the circumstances that it is appropriate to make a drug treatment order. I am satisfied that the facilities likely to be used for the treatment and supervision part of the order are reasonably accessible to you, and that there are sufficient staff and resources to enable the treatment and supervision to be provided under this order.
I note that the order will be subject to you agreeing in writing to the making of the order and to complying with the treatment and supervision part of the order. So, the order will take effect when you have had actually signed the relevant document.
The order itself is as follows:
1 You are sentenced to a drug treatment order, pursuant to s 27B of the Sentencing Act which provides that you will be sentenced to a custodial period of two years’ imprisonment.
2 However, you are not required to serve all or any part of that order unless ordered to by a court, and that will occur if you do not comply with the conditions of the order.
3 The conditions will be the usual core conditions which are:
(a) You must not, in Tasmania or elsewhere, commit another imprisonable offence.
(b) You must attend the Hobart Magistrates Court on 28 July 2020 at 10.00 am and on each occasion thereafter to which the matter is adjourned by that court. Or otherwise as directed by that court.
(c) You must report to a court diversion officer at the office of Community Corrections in Hobart within two clear working days of your release from prison.
(d) You must undergo such treatment for your illicit drug use problem as is specified in this order or from time to time specified by the court.
(e) You must report to, and accept visits from, your case manager or court diversion officers.
(f) You must, unless there are special circumstances, give your case manager at least two clear workings days’ notice before any change of address.
(g) You must not leave Tasmania except with the permission, granted either generally or in a particular case, of the court.
(h) You must comply with all lawful directions of the court.
(i) You must comply with all reasonable directions of your case manager and court diversion officer concerning the core conditions and program conditions of this order.
4 The program conditions of the order will be as follows. They are essentially those that are set out in the report I received:
(a) You do not associate with Mr Tony White or Mr Michael Linnell;
(b) That you remain contactable at all times and notify CMD immediately of any change in telephone number;
(c) That you abstain from all synthetic substances, mood and mind altering substances and unidentified substances, and submit to testing as directed by CMD;
(d) That you refrain from the consumption of alcohol and submit to alcohol testing as required by CMD and/ or Tasmanian Police;
(e) That you are not to use any prescription medication without approval from a General Practitioner or Court Diversion Officer, and are only to take prescribed medication in accordance with the directions;
(f) That you obey all reasonable directions of your Court Diversion Officer or any other CMD case worker, including with respect to attending case management appointments, counselling sessions, urinalysis and any other appointment or assessment required by the program;
(g) That you reside at 7 Allen Place, Gagebrook, or an address approved by CMD, and be at that premises between the hours of 9.00pm and 7.00am, unless he has been given prior approval by CMD to be absent.
The effect of this Mr Gilchrist, as I understand it, is that the two months and one week imprisonment on each of the dangerous driving and evade police, to be served cumulatively sees you eligible for release today because that is backdated to 3 March and four months and two weeks from 3 March is 24 July, which is today.
This is a huge opportunity for you and the consequences of failure are obvious. I am told that you have a motivation of 12 out of 10 and I hope that you seize this with both hands because this is a turning point in your life.