Toby Mitchell's violent past revealed in firearms test case
Gangster Toby Mitchell has become the first test case for sweeping new powers given to Victoria Police to crack down on gun crime, even though he has never been convicted of a firearms offence.
Mitchell has been identified as a candidate for a Firearm Prohibition Order because he is routinely violent, “heavily involved in the drug and criminal underworld” and apparently “wishes to be viewed as an outlaw and treated as such,” according to police intelligence reports obtained by The Age.
The highly-sensitive documents have become available as part of Mitchell’s legal fight to overturn a the order, which allows police to search designated suspects at any time without a warrant.
Mitchell was the first person in Victoria to be served with an FPO and he has sparked a potential test case of the law by filing an objection to the Victorian Civil Administrative Tribunal.
The 43-year-old declined to respond to questions about his case: “No comment. F--k you,” he said.
The Age understands Mitchell will argue the order is invalid because he has no proven history of gun violence or possession and he is the target of a persistent campaign of police harassment. The police file shows Mitchell has no convictions for firearms offences, but sources say the orders are not just about targeting people with a history of gun violence, they were about whether they pose a threat to the community.
"Victoria Police should throw everything at Mitchell," the source said.
Among the reasons cited for targeting the former Bandidos enforcer with an FPO is Mitchell’s history of being shot in public and close links to members of the ultra-violent jail gang Prisoners of War, which includes Carl Williams’ murderer and a man who gunned down a police officer.
“His ongoing association with [Outlaw Motorcycle Gang Members] and other criminal associates reflects a deliberate decision by Mitchell to stand aside from community norms, indicating he wishes to be viewed as an outlaw and treated as such,” Assistant Commissioner Stephen Fontana wrote in a memo.
The sweeping new firearms powers were introduced in late 2017 following a dramatic rise in the number of shootings and gun-related crimes in Victoria over the past five years.
An FPO allows police to search a subject, their home and vehicle, and anyone in their presence without a warrant. They can be issued by police based on someone’s criminal history, behaviour, associations, or intelligence that suggests they pose a risk to public safety.
Police have described the legislation as a game changer in the fight against organised crime. It is estimated they may issue as many as 3000 orders to criminals and their associates.
In Mitchell’s case, Victoria Police has tendered to VCAT a 30-page report about his criminal history, interactions with law enforcement, and an assessment of his overall eligibility for the order.
The file reveals that, while Mitchell has three dozen convictions for unlawful assault, recklessly causing injury, affray, drug possession, bail offences and possessing a prohibited weapon (a baton), he has none for gun crime.
He was charged with firearm offences in 2015 amid allegations he had threatened a man and his child with a gun as part of an extortion attempt.
However, the prosecution collapsed after it was revealed in court the victim’s claims were almost entirely fabricated. Despite the dismissal of the case, Victoria Police has cited that incident and the now struck out charges as an example of Mitchell’s involvement with guns: “I have no reason to disbelieve the victim’s account of this incident,” AC Fontana wrote in a memo.
Police cite the fact that Mitchell has been shot in two separate incidents in 2011 and 2013 where he declined to cooperate with police in the ensuing investigation. A tattoo parlour linked to Mitchell was shot up only a fortnight ago.
The file includes the description of a comment attributed to Mitchell following the 2013 shooting that he “should probably carry a gun but doesn’t and realises if he is going to get shot he won’t get a chance to get some out before he is shot” as evidence he has the “propensity to access and use firearms”.
The partially-redacted file also contains descriptions of police interactions with Mitchell, including observations that he collects parrots, "doesn't like horse-racing and has never been to the spring carnival", and called one officer a "c--t" because he was prevented from taking an overseas holiday at Christmas in 2012 because of his bail conditions.
Other justifications for the FPO include Mitchell’s former and current associations with known criminal elements, in particular the Bandidos motorcycle gang, where he was once the national sergeant-at-arms and “keeper” of the club’s weapons arsenal.
Police also note Mitchell is in “recent and constant contact” with the incarcerated leader of the Prisoners of War gang, Matthew Johnson, who bashed Carl Williams to death in 2010 after he became a police informer.
He also speaks often with inmate Sam Liszczak, who shot and seriously wounded a police officer during a chase following an assault on the homes of the Williams crime family.
The first hearing in the VCAT matter is scheduled for Friday.
Mitchell’s lawyer, Theo Magazis, did not respond to a request for comment.