Cooper v The Queen
[2020] VSCA 288
•19 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2020 0014
| BRODIE COOPER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 November 2020 |
| DATE OF JUDGMENT: | 19 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 288 |
| JUDGMENT APPEALED FROM: | [2019] VCC 2187 (Judge Dean) |
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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – One charge of reckless conduct endangering persons, one charge of prohibited person possessing firearm – Applicant fired shot at ground near victim after altercation with victim – Total effective sentence of 4 years’ imprisonment with non-parole period of 2 years and 9 months – Applicant had disadvantaged background and serious criminal history – Whether sentence on charge of reckless conduct endangering persons and total effective sentence manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R O’Neill | Victorian Bar Duty Barristers’ Scheme |
| For the Respondent | Mr P Bourke SC | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA
OSBORN JA:
Introduction and summary
The applicant pleaded guilty to the charges set out in the table below and, on 18 December 2019, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Cooper [2019] VCC 2187 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Reckless conduct endangering persons [s 23 Crimes Act 1958] 5 years 3 years Base 2 Prohibited person possess firearm [s 5(1) Firearms Act 1996] 10 years 2 years 1 year Total effective sentence: 4 years’ imprisonment Non parole period: 2 years and 9 months Pre-sentence detention declaration: 546 days Section 6AAA statement: 5 years and 6 months’ imprisonment with a non-parole period of 4 years
Initially, the applicant sought leave to appeal against his sentence on the sole ground that the judge erred in giving ‘insufficient weight to the Applicant’s rehabilitation achieved at the time of sentencing and prospects of rehabilitation’. On 27 April 2020, a judge of this Court refused leave.[2]
[2]Cooper v The Queen (Supreme Court of Victoria, Priest JA, 27 April 2020).
The applicant has elected to renew his application for leave to appeal pursuant to s 315(2) of the Criminal Procedure Act 2009. At the hearing before us, the applicant applied for leave to add a second ground of appeal, namely, that the sentence on charge 1 and the total effective sentence are manifestly excessive. As the Crown did not oppose this application, we granted the applicant leave to add the second ground. The applicant then informed us that he abandoned ground 1 in its present form and would treat the issue of rehabilitation as a sentencing consideration that supported the manifest excess ground.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending
In May 2018, the applicant was residing with his mother and her partner, Ben Wilson, in a house in Melton South that was owned by Mr Wilson. Sarah Reynolds and Jason Lee (‘victims’) lived in the house next door. In the fortnight leading up to 23 May 2018, the victims had been experiencing issues with Mr Wilson’s household in relation to rubbish, noise and parking on the nature strip.
On the morning of 23 May 2018, the applicant smoked methamphetamine. At approximately 9:00 am, an argument occurred between him and Ms Reynolds regarding his car being parked on the nature strip between Mr Wilson’s house and the victims’ house. Ms Reynolds became upset and called Mr Lee, who was at work.
At approximately 9:52 am, Mr Lee returned home and entered the front yard of Mr Wilson’s house. A physical altercation took place between the applicant and Mr Lee, during which Mr Lee struck the applicant with a hammer. The fight was broken up by Mr Wilson. Mr Lee and Ms Reynolds (who had arrived at some point during the altercation) then returned to their property.
After the altercation, the applicant entered Mr Wilson’s garage and retrieved a loaded small calibre rifle. He walked down the victims’ driveway and came within five to six metres of them as they stood at their front door. In fear of the applicant, Ms Reynolds encouraged Mr Lee to go inside with her. However, Mr Lee challenged the applicant to shoot him and closed his eyes in anticipation of a shot being discharged. When no shot was fired, Mr Lee opened his eyes and laughed at the applicant.
Angered by Mr Lee’s conduct, the applicant aimed the firearm at the victims’ driveway and discharged one round (charge 1 — reckless conduct endangering persons). The fired bullet ricocheted off the concrete. The bullet jacket lodged in a wooden gate at the end of the driveway and a metal fragment from the round passed through the wooden gate into the metal shed at the back of the victims’ property. A fragment of concrete struck Mr Lee in the left leg just below the knee. This caused Mr Lee immediate pain, a small scratch to his leg and a tear to his work pants. Ms Reynolds was not physically injured.
The applicant fled the scene and returned to Mr Wilson’s house. Ms Reynolds ran inside her home and telephoned 000.
At the time he was in possession of the rifle, the applicant was deemed to be a prohibited person under the Firearms Act 1996 (charge 2 — prohibited person possess firearm).
The applicant was arrested on 20 June 2018 and was interviewed on 17 September 2018. His version of events in the record of interview was as follows:
(a)On 23 May 2018, the applicant parked on the victims’ nature strip.
(b)Ms Reynolds had an argument with the applicant about him parking on the nature strip.
(c)A few hours after the argument, Mr Lee entered Mr Wilson’s house with a hammer and struck the applicant in the face, breaking his nose.
(d)The applicant then wrestled Mr Lee outside and the fight continued. Mr Lee continued to hit the applicant in the knees and once in the back of the head with the hammer.
(e)The applicant put Mr Lee in a ‘chokehold’ in an attempt to make Mr Lee stop hitting him, causing Mr Lee to go to sleep, then Mr Wilson took the hammer off Mr Lee. The applicant then let Mr Lee go.
(f)As the victims returned to their house, Mr Lee called out ‘I’ll go get my boys’. As the applicant believed that Mr Lee was associated with an outlaw motorcycle club, he left Mr Wilson’s house after Mr Lee’s departure.
(g)The applicant denied attending the victims’ house and discharging a rifle into the concrete driveway after pointing it at the victims. He stated that he ‘never went and pointed a gun at Jason Lee or Sarah’.
(h)In relation to the damage to the victims’ driveway which indicated the discharge of a firearm, the applicant stated that Mr Lee ‘probably … threw [the evidence of the discharge of a firearm] on the ground’ and ‘smashed [the victims’ driveway] with the … hammer’.
Applicant’s personal circumstances
The applicant was aged 27 at the time of the offending and 29 at the time of sentencing.
The applicant’s childhood was marked with significant disadvantage. His mother has a long history of substance abuse and may have been substance-affected during her pregnancy with him. The applicant does not recall his parents ever being together and has only met his father, who also had problems with drugs, a few times in his life.
The applicant shares a mother with five half-siblings. He has one older sister and one younger sister close to his age, who each have separate fathers. He also has three much younger siblings whose father is a man named Sonny with whom his mother had a long-term relationship.
The applicant and his sisters were raised by their maternal grandparents until he was about 5 years of age. When his grandparents attempted to gain custody of the children, their mother reclaimed custody and the applicant did not have contact with his grandparents for the next few years.
Throughout the next eight years, the applicant’s housing situation was very unstable and his family was at times evicted from rental properties and had to resort to ‘couch surfing’. The applicant’s mother was heavily addicted to drugs and would put her addiction ahead of her children’s needs, including their need for food and appropriate clothing. There were no family activities or support for the applicant to be involved in sport, and no rules or boundaries were placed on the children.
The applicant’s mother kept company with heavy drug users and had various boyfriends who were often violent. The applicant at times attempted to protect his mother when she was being assaulted by her partners and he would subsequently also be assaulted.
When the applicant was aged 11, his mother began a relationship with Sonny and the family’s life became more stable, although Sonny was also using drugs. The applicant left home at the age of 14 after his mother and Sonny started to have their three children.
The applicant’s education was erratic. He attended numerous primary schools and was eventually expelled in Year 8. He did not undertake any further schooling or employment and has often been in receipt of NewStart payments.
When the applicant left home, he moved in with his girlfriend, Rebecca Gatt, and her family. The applicant and Ms Gatt were in a relationship for about 10 years and have a 10 year-old daughter who has always remained in the care of Ms Gatt.
The applicant has also had a significant relationship with a woman called Natasha. The couple were together for several years and have a 2 year-old son. The relationship eventually deteriorated and the applicant now has no contact with his son due to several intervention orders taken out against him.
The applicant has a longstanding history of alcohol abuse. Following the breakup of his relationship with Ms Gatt, at the age of 24, he was introduced to methamphetamines and was smoking the drug every day for a time until he met Natasha. As his relationship with Natasha deteriorated, the applicant recommenced daily use of methamphetamines. He has also intermittently used GHB and ketamine.
Applicant’s prior criminal history
The applicant has an extensive criminal history which commenced when he was in his late teens.
On 25 January 2010, the applicant was convicted in the County Court of aggravated burglary, intentionally causing injury, common assault and intentionally destroying property. He was sentenced to 9 months’ imprisonment and placed on a community correction order (‘CCO’) for 2 years. On 23 March 2010, he was convicted in the Magistrates’ Court of intentionally causing injury and was sentenced to 21 days’ imprisonment (wholly suspended).
On 18 March 2011, the applicant was sentenced by Kaye J in the Supreme Court to 6 years’ imprisonment with a non-parole period of 3 years for the offences of aggravated burglary, kidnapping, intentionally causing serious injury and reckless conduct endangering life, which he committed in December 2008 (‘2008 offending’) with Karen Hills and five other co-offenders.[3]
[3]DPP v Hills [2011] VSC 87 (‘Hills’).
The circumstances giving rise to the 2008 offending are as follows. The applicant — who was then aged 18 — and his co-offenders forced their way into the female victim’s home in East Brunswick and forcefully abducted her. At some stage, the applicant punched the victim in the face. The offenders placed the victim in the boot of one of their cars and the applicant drove that car to East Keilor. The offenders forcefully extracted the victim from the boot and forced her through bush to the Maribyrnong River while further assaulting and kicking her. One of the co-offenders threw the victim into the water, struck her and dunked her head forcefully under water on a number of occasions. During the incident, the applicant was standing close to the water to ensure that the victim would not be able to escape. Before the offenders departed from the river bank, leaving the victim in the water, the applicant threatened that he would find her and ‘put one’ in her and that he would ‘knock [her] family too’.
At the plea hearing before Kaye J, the applicant relied upon a psychological report by Warren Simmons dated 9 February 2011. Mr Simmons noted that the applicant was prone to regarding the actions and conduct by other people as slights against him, to which he responded with aggression. Mr Simmons reported that the applicant had a limited capacity to make a sensible judgment as to people, and his idea of being a male revolved around significant levels of aggression.[4]
[4]Hills [2011] VSC 87, [57].
Kaye J described the 2008 offending as ‘calculated to terrify’ the victim and stated that each offender had proved themselves to be ‘callous and craven cowards’.[5]
[5]Hills [2011] VSC 87, [27], [31].
Kaye J stated that the applicant had ‘not learnt the lesson from [his] previous … convictions, namely, that the courts will not tolerate the commission of violent and like offences, and that such offending will be met with stern punishment’.[6] Kaye J took into account the applicant’s youth and his ‘appalling deprivation and disadvantage from [his] earliest infancy’.[7] Kaye J made the following observations about the weight to be given to the applicant’s rehabilitation:
The law takes into account the fact that young persons are prone to making bad judgments, and to acting immaturely, especially in the company of others. In addition, the law regard[s] the rehabilitation of a young offender as an important, if not the primary, objective of sentencing. It is not only in the interests of the offender but, more importantly, the interests of the community, that a young offender undergo reform and rehabilitation, so as to prevent a repetition of the wrongdoing, for which the offender is sentenced.
…
[The applicant’s] offending in this case is serious, even more so in light of [his] previous convictions. … [The applicant was] young at the time of the offending, and [he is] still young. As I have already explained, that factor is relevant, both to explain the impulsivity and poor judgment exhibited by [him] on the night in question, and also to questions relating to [his] rehabilitation. The fact that [he does] not come from a privileged background, but, by stark contrast, [has] suffered an extraordinarily deprived and disadvantaged childhood, lends force to [the applicant’s] submission that [his] rehabilitation should be given particular weight in [his] case.[8]
[6]Hills [2011] VSC 87, [44].
[7]Hills [2011] VSC 87, [46].
[8]Hills [2011] VSC 87, [45], [59].
On 5 May 2011, the applicant was convicted in the Magistrates’ Court of nine charges of burglary, seven charges of theft and single charges of attempted theft, attempted burglary, theft from a shop, assaulting police, dealing with property suspected of being the proceeds of crime and going equipped to steal. He was sentenced to an aggregate sentence of 12 months’ imprisonment to be served concurrently with the sentence for the 2008 offending.
On 6 July 2015, the applicant was convicted in the Magistrates’ Court of assaulting police on duty, possessing a firearm while a prohibited person and possessing ammunition without a permit. He was sentenced to an aggregate sentence of 8 months’ imprisonment to be served concurrently with the sentence for the 2008 offending, and fined $500. On 5 December 2016, he was convicted in the Magistrates’ Court of possessing an imitation firearm without a permit and was sentenced to 25 days’ imprisonment to be served concurrently with the sentence for the 2008 offending.
On 19 September 2017, a total of 24 convictions were recorded against the applicant in the Magistrates’ Court for offences including reckless conduct placing person in danger of serious injury, theft of a motor vehicle, burglary, retention of stolen goods, going equipped to steal, handling stolen goods, theft from a shop, dealing with property suspected of being proceeds of crime (two charges) and assaulting an emergency worker on duty (two charges). He was sentenced to a total effective sentence of 8 months and 14 days’ imprisonment and was placed on a CCO for 18 months.
The applicant committed the current offending a few months after he had been released from prison and while subject to the CCO.
Plea hearing
The applicant relied upon a psychological report prepared by Warren Simmons dated 20 November 2019, who, as we have seen, had also assessed the applicant in 2011 in respect of the 2008 offending. Mr Simmons stated that the applicant completed the ‘Montreal Cognitive Assessment’ neuropsychological screening tool, which indicated no evidence of any gross cognitive impairment. However, Mr Simmons noted that a neuropsychological report tendered at the plea hearing for the 2008 offending stated that the applicant had executive dysfunction, that is, problems with impulsivity and poor decision-making. Mr Simmons stated that this would have contributed to poor judgment on 23 May 2018.
Mr Simmons reported that the applicant was able to express insight into some of his problems after undertaking schema and cognitive behavioural therapy for 12 months. Mr Simmons suggested that the applicant would benefit from continuing in the therapy and drug and alcohol counselling he had commenced while in custody. Mr Simmons noted the following positive features of the applicant’s life: his long-term relationships; a desire to bond with his children; and the fact that the applicant’s substance abuse did not commence until he was aged 24.
Mr Simmons stated that, given the applicant’s history and despite his best efforts, his prospects of rehabilitation must be considered ‘guarded’ due to the many issues he will have to overcome when he is released into the community. During the plea hearing, defence counsel acknowledged that this was ‘probably a realistic assessment’.[9]
[9]Transcript of Proceedings (13 December 2019) 19.5.
The applicant also relied upon a letter from Dr Katherine Honeyman dated 10 December 2019. That letter stated that the applicant had engaged in 43 hour-long individual counselling sessions while in custody and provided details of three drug and alcohol programs also completed by him while in custody.
The applicant tendered four certificates of completion of various counselling programs, one certificate of attendance at a family law program and two statements from Box Hill Institute detailing vocational education undertaken by him while in custody.
The applicant has worked as a welder while in custody for the current offending.
Sentencing remarks
The judge described the applicant’s offending as ‘of the utmost seriousness’ and ‘serious examples of [the] crimes [the subject of the two charges]’.[10] The judge acknowledged that ‘the offences were preceded by provocative and violent behaviour’ by Mr Lee, but stated that the applicant ‘escalated the incident in a completely unwarranted manner and used a firearm on private property to intimidate and threaten a person who had challenged [him]’.[11]
[10]Sentencing remarks [11].
[11]Sentencing remarks [11].
The judge accepted that the applicant’s guilty plea — made after the charges were listed for trial following a contested committal hearing — was evidence of a ‘limited degree of remorse’ for his offending.[12] The judge stated that, whilst the applicant did not plead guilty at an early stage, he did spare the community the burden and cost of a criminal trial.
[12]Sentencing remarks [3].
The judge stated that the applicant’s ‘extensive criminal history’ was ‘of significance for sentencing purposes’.[13] The judge noted that the applicant had continued to offend despite the lengthy sentence of imprisonment imposed upon him for the 2008 offending. The judge stated that specific deterrence was ‘a prominent sentencing consideration’.[14]
[13]Sentencing remarks [4], [6].
[14]Sentencing remarks [6], [20].
The judge considered the applicant’s ‘extreme disadvantage and neglect’ during his childhood and formative years due to his mother’s severe drug addiction.[15] The judge stated that the applicant’s ‘disrupted and chaotic background is a direct cause of [his] extensive criminal history by reason of [his] impaired impulse control and capacity for reasoned decision making’.[16]
[15]Sentencing remarks [16].
[16]Sentencing remarks [17].
The judge acknowledged the ‘extensive counselling and treatment for addiction’ that the applicant had undertaken while in custody and accepted that the applicant was making ‘significant progress in relation to insight into [his] offending and drug and alcohol relapse prevention’.[17] He also accepted that the applicant would require ongoing treatment and counselling for drug and alcohol dependency.
[17]Sentencing remarks [18].
The judge stated that it was ‘very much to [the applicant’s] credit’ that he is ‘highly motivated to play a positive role in the care of [his] children in the future’.[18]
[18]Sentencing remarks [19].
The judge found that the applicant’s prospects of rehabilitation ‘must be approached with caution’.[19]
[19]Sentencing remarks [20].
In relation to charge 1, the judge stated:
Lawlessness and the use of firearms in these circumstances must be denounced by this court, and the public protected from persons like [the applicant] who are prepared to offend in this manner. The sentence must be calculated to deter persons from resorting to violence of this type and the use of firearms in that context.[20]
[20]Sentencing remarks [12].
The judge stated that charge 2 was a separate and distinct offence and that the Court had responsibility to enforce the strict regulatory framework regarding the possession of firearms.
Parties’ submissions
The applicant did not seek to impugn the sentence on charge 2 or the order for cumulation for that sentence. His challenge to the total effective sentence relied solely on his contention that the sentence on charge 1 was manifestly excessive.
The applicant submitted that, although his offending was serious, it was not at the highest end. That was said to be because he deliberately discharged his firearm into the driveway rather than at the victims. The applicant contended that, whilst his conduct created some danger for the victims, the risk of any injury to them was objectively very low. The applicant also contended that the discharge of his firearm was not premeditated, as he only discharged it after being goaded by Mr Lee. The applicant argued that, when the gravity of his offending is seen in this light and appropriate weight is given to the mitigating factors upon which he relied, a sentence of 3 years’ imprisonment for charge 1 — representing 60 per cent of the maximum of 5 years — was manifestly excessive.
The mitigating factors upon which the applicant relied included his guilty plea, his extremely disadvantaged background — which attracted the principles in Bugmy v The Queen[21] — and his prospects of rehabilitation.
[21](2013) 249 CLR 571, 594–5 [43]–[44]; [2013] HCA 37 (‘Bugmy’).
In relation to his prospects of rehabilitation, the applicant submitted that he had ‘turned things around’ while in custody through individual counselling and completion of five ‘major programs’. He emphasised that he had progressed from a deprived and troubled youth to a mature man capable of working as a welder and caring for his children.
The applicant argued that his circumstances had markedly changed between the 2008 offending and the current offending. According to the applicant, while he was homeless and trapped in a cycle of alcohol abuse and related offending in 2008, in May 2018 he was living with his mother, looking for work and trying to reconnect with his ex-partner and children. It was said that the applicant reoffended in May 2018 in the context of trying to put his life back together and feeling that his family was under imminent threat from Mr Lee.
The applicant contended that rehabilitation is a ‘powerful consideration’ when viewed alongside the principle of parsimony.
The applicant conceded that, as the judge’s assessment of his prospects of rehabilitation was consistent with that of Mr Simmons, he could not contend that the judge committed a specific error on the issue of rehabilitation. However, he argued that, having regard to the gravity of his offending, his prospects of rehabilitation and the other mitigating circumstances upon which he relied, the sentence of 3 years’ imprisonment was outside the sentencing range available to the judge.
In response to questions from the Bench, the applicant did not accept that his offending constituted a form of retaliation for Mr Lee’s earlier assault and thus heightened the importance of general deterrence in the sense that sentences must be sufficiently high to discourage individuals from taking the law into their own hands. However, the applicant acknowledged that his response to Mr Lee’s earlier assault was aggressive and intimidating, and that this was relevant to the weight to be given to general deterrence.
The applicant referred to four cases that were said to be comparable in relation to charge 1. The cases are Director of Public Prosecutions v O’Kelly,[22] Director of Public Prosecutions v Stephen,[23] Director of Public Prosecutions v Chkhaidem[24] and Director of Public Prosecutions v Nguyen.[25]
[22][2017] VCC 240 (‘O’Kelly’).
[23][2016] VCC 2081 (‘Stephen’).
[24][2015] VCC 521 (‘Chkhaidem’).
[25][2017] VCC 2010 (‘Nguyen’).
In O’Kelly, the offender fired eight shots from a stationary car towards a building in which six persons were present. One round smashed through a window and shattered a shower screen which was being cleaned. He pleaded guilty and was sentenced to 2 years and 6 months’ imprisonment. In Stephen, the offender discharged a firearm through a window of the victims’ house into a room in which the victims were present. He pleaded guilty and was sentenced to 20 months’ imprisonment. In Chkhaidem, the offender was present as an accomplice when two co-offenders discharged 12 shots at a house while the victims were inside. He pleaded guilty and was sentenced to a CCO for a period of 15 months. In Nguyen, the offender fired two shots — one in the direction of police officers — during a raid at the offender’s home from which the police suspected that drug trafficking activities were being conducted. She pleaded guilty and was sentenced to 3 years’ imprisonment for reckless conduct endangering life and to 18 months’ imprisonment for reckless conduct endangering persons, 9 months of which was cumulated on the first sentence.
The applicant submitted that the offending in O’Kelly, Stephen, Chkhaidem and Nguyen was more serious than his offending because the former concerned a firearm being discharged in the direction of other persons or at occupied premises, thus creating a real risk of someone being shot. It was said that the offending in O’Kelly, Stephen and Chkhaidem was also more serious because it was premeditated. The applicant emphasised that the offending in Stephen and Chkhaidem involved discharge of a firearm in the context of enforcement of a drug debt.
The applicant contended that, despite the more serious offending in O’Kelly, Stephen, Chkhaidem and Nguyen, the sentences imposed in those cases were lower than the sentence imposed on him. According to the applicant, those comparable cases supported his contention that his sentence — at 60 per cent of the maximum — was too high.
The Crown submitted that the sentence on charge 1 was well within the range of sentences open to the judge when due regard was had to the seriousness and circumstances of the offence, the applicant’s criminal history and his prospects of rehabilitation.
The Crown contended that discharging a firearm is an inherently dangerous act. The Crown argued that, whilst the firearm was aimed away from Mr Lee, the applicant discharged it close enough to Mr Lee to cause him injury, albeit of a minor nature.
According to the Crown, this case called for general and specific deterrence. The Crown noted that, at the time of the offending, the applicant had only recently been released from prison and was serving a CCO. The Crown contended that this offending was ‘more of the same’ from a person who has previously received serious sentences, especially for the 2008 offending.
The Crown argued that the applicant’s conduct constituted retaliation against Mr Lee for the earlier altercation. Consequently, it was said that the sentence must deter people from taking the law into their own hands.
The Crown submitted that the judge correctly found that the applicant’s prospects of rehabilitation must be approached with caution. It contended that the documents tendered by the applicant on the plea merely confirmed that he completed programs and participated in counselling sessions while he was in a controlled prison environment. The Crown argued that, in all the circumstances, the judge did not give insufficient weight to the applicant’s rehabilitation achieved at the time of sentencing or to his prospects of rehabilitation.
The Crown submitted that the cases of O’Kelly, Stephen, Chkhaidem and Nguyen are different from the present case and, whilst they provide some assistance, they do not support the applicant’s contention that the sentence on charge 1 was outside the sentencing range that was open to the judge.
Decision
In our opinion, whilst the sentence on charge 1 was stern, it was not manifestly excessive.
The offending the subject of charge 1 was very serious, having regard to the following:
(a)The offending was inherently dangerous because it involved the discharge of a firearm in close proximity to the victims. Whilst it is true that the applicant did not aim at the victims, there was a clear risk of the bullet — or objects with which the bullet had contact — ricocheting and seriously injuring them. The applicant showed a complete disregard for the right of the victims to feel safe in their own home.
(b)We reject the applicant’s submission that the risk of injury was very low. Mr Lee was in fact injured by a piece of concrete and there was some damage to a gate and a shed. Although Mr Lee’s injuries were minor, they could have been more serious.
(c)The applicant did not act instinctively in response to perceived danger to himself or his family because, at the time he discharged his firearm, he and his family — and their property — were not at risk of harm. Rather, the applicant had time to reflect after being assaulted by Mr Lee and he made a deliberate decision to confront him by going into the victims’ property with his loaded firearm. When the applicant was goaded by Mr Lee, instead of walking away, he chose to discharge the firearm.
(d)The offending involved the applicant entering the victims’ private property — without their permission — armed with a loaded firearm for the purpose of intimidating and threatening Mr Lee.[26]
(e)We accept that the offending was not committed in furtherance of an illegal purpose such as enforcement of a drug debt. However, we reject the applicants’ submission that the offending was not in retaliation for Mr Lee’s earlier assault. Although the applicant acted in anger, he engaged in deliberate conduct which placed others in danger.
(f)The offending was aggravated by the fact that the applicant was serving a CCO at the time it was committed.
[26]Sentencing remarks [11]. See [41] above.
In the light of the above considerations and the applicant’s extensive criminal history for similar offending, his moral culpability was high.
For the above reasons, denunciation, protection of the community, specific deterrence and general deterrence were paramount sentencing considerations.
Denunciation was important because the courts are faced with a disturbing number of offences involving the discharge of firearms and need to condemn such offending in the strongest possible terms on behalf of the community.
Protection of the community and specific deterrence were critical to the exercise of the sentencing discretion in the present case having regard to the applicant’s extensive criminal history. Despite having been given opportunities to reform, he has continued to engage in violent offending and to commit firearm offences. In 2011, Kaye J gave considerable weight to the applicant’s rehabilitation due to his youth. The applicant is no longer a youthful offender. As the judge stated during the plea hearing, the applicant ‘is violent and he is dangerous’.[27] As such, in exercising the sentencing discretion, the judge was required to give substantial weight to the need to keep the community safe from the applicant.
[27]Transcript of Proceedings (13 December 2019) 13.23–13.24.
The fact that the applicant’s offending involved the discharge of a firearm in retaliation for Mr Lee’s previous assault heightened the importance of general deterrence. In Kelly v The Queen — which involved the discharge of a firearm in the direction of a car from which two shots had been fired at the offender’s home — this Court stated the following about offending that was retaliatory in nature:
The courts have repeatedly emphasised that the sentences for individuals who take the law into their own hands and commit crimes in order to resolve real or perceived grievances must be sufficiently high to deter others from adopting that course. For example, in Zogheib, this Court said the following:
Rather than contacting police, the appellant took the law into his own hands.
…
The appellant’s conduct, and such conduct by like-minded individuals, simply cannot be countenanced in a civilised society. In such a case, considerations of denunciation and general deterrence must be given substantial weight.[28]
[28][2020] VSCA 171, [46] (‘Kelly’), citing Zogheib v The Queen (2015) 257 A Crim R 454, 475 [89], 477 [98]; [2015] VSCA 334.
We accept that the applicant’s guilty plea warranted moderation of his sentence and that his deprived upbringing engaged the principles in Bugmy. The applicant has not complained that the judge did not give sufficient weight to these considerations.
We also accept that appropriate weight had to be given to the applicant’s progress towards rehabilitation and his prospects of further rehabilitation. However, the judge was entitled to give considerable weight to the opinion of Mr Simmons, who assessed the applicant’s prospects as ‘guarded’. As Mr Simmons had assessed the applicant after the 2008 offending as well as after the current offending, he was familiar with the applicant’s history and progress and was well placed to opine on his prospects of rehabilitation. In all the circumstances, we are not satisfied that the judge failed to give appropriate weight to the applicant’s prospects of rehabilitation.
We now consider current sentencing practices. Whilst so-called comparable cases can be treated as yardsticks which can assist in identifying the relevant sentencing range, they are not to be treated as precedents to be applied or distinguished.[29] There is nothing in the cases of O’Kelly, Stephen, Chkhaidem and Nguyen upon which the applicant has relied which provides support for the applicant’s contention that the sentence imposed on charge 1 and the total effective sentence in the present case are outside the available range.
[29]Kelly [2020] VSCA 171, [52].
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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