Director of Public Prosecutions v Alfred
[2024] VCC 720
•23 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-00949
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALFRED, Michael |
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JUDGE: | Judge Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 May 2024 | |
DATE OF RULING: | 23 May 2024 | |
CASE MAY BE CITED AS: | DPP v Alfred | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 720 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Conviction following trial - Theft – Intentionally causing injury – Prohibited person possess firearm – Found guilty of statutory alternative charge to Intentionally causing serious injury in circumstances of gross violence – General deterrence weighty factor in use of firearm – Youth – Family a protective factor
Legislation Cited: Crimes Act 1958 (Vic); Firearms Act 1996 (Vic)
Cases Cited:R v Renzella (1997) 88 A Crim R 65; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 219 A Crim R 369; DPP v Telford [2010] VSCA 118; DPP v Schewizer [2016] VCC 722; Phillips v The Queen; Liszcak v The Queen [2017} VSCA 313; DPP v Shepard [2022] VCC 1293; DPP v Khoder [2023] VCC 1899; R v Verdins (2007) 169 A Crim R 581.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. Georgia McMaster | Office of Public Prosecutions |
| For the Accused | Mr. Phillip Bloeman | Leanne Warren and Associates |
HIS HONOUR:
Circumstances of offending[1]
[1] I have read and taken into consideration Prosecution Submissions on Plea (6 May 2024, Exhibit P1); Defence Plea Submissions (30 April 2024, Exhibit D1); Lisa Jackson, Confidential Psychological Report (30 October 2023, Exhibit D2); Lisa Jackson, Confidential Psychological Report (10 April 2024, Exhibit D3); and various letters tendered on Mr Alfred’s behalf (Exhibits D4 to D7).
Early in the morning of 15 February 2020, a shotgun was fired from a white Audi SUV which was driving past the rear of Chasers nightclub in South Yarra. Chasers was hosting a live music event for Melbourne rap artist Sean Deng (aka BBG Smokey), and many members of the African community were there that night, both inside and outside the venue.
The Audi had been stolen some 30 hours earlier from a home in Canterbury. In the minutes leading up to the shooting, the Audi circled the block in which Chasers was located several times. A man – Machar Machar – was struck by pellets from the shotgun cartridge, and sustained injuries to his hand. Immediately after the shotgun was fired, the offenders drove off, damaging the Audi through a collision with a roundabout, abandoning it, and then fleeing on foot. They were not apprehended.
Michael Alfred, the prosecution case was that you were the person sitting in the passenger seat of the Audi at the time of the shooting. The way in which prosecution sought to prove that fact affects the basis on which I can sentence you. The prosecution relied on evidence that:
a.You were 100 billion times more likely than not, to be the source of DNA on the straw of a McDonald’s drinking cup that was found next to the abandoned Audi;
b.You were 270 times more likely than not, to be a contributor to a mixed DNA profile found on screws for the fake rear number plate of the Audi (which had been fixed to the Audi sometime after its theft), while your left thumbprint was found on the number plate itself;
c.A phone that you were alleged to have been using that night could have been in the area where the shooting took place;
d.The step count of that phone during the period after the shooting was consistent with the movements of the offenders as captured on CCTV footage; and
e.You owned a grey Nike hoodie of the same type as one that the offender in the passenger seat appeared to be wearing.
Given the jury’s verdict, the jury was satisfied beyond reasonable doubt that you were one of the occupants of the car, most likely the occupant of the passenger seat. The prosecution did not seek to prove the identity of the driver; nor could the prosecution establish which of the two occupants had fired the shotgun, or what the motive for the shooting was.
The prosecution case in relation to the charge of theft was that you appropriated the stolen Audi by being in it at the time of the shooting. The prosecution did not rely on any other possible acts of appropriation (such as an argument that you had been responsible for changing the number plates).
The jury heard that you were a prohibited person because you had previously been charged with possessing cannabis. The prosecution case in relation to the charge of being a prohibited person possessing a firearm was that you were either holding the shotgun, or had access to it by virtue of being in the car with it.
In relation to the shooting, the prosecution charged you with intentionally causing serious injury in circumstances of gross violence, namely that you planned in advance to have with you and to use a firearm. In the alternative, the prosecution charged you with recklessly causing serious injury in circumstances of gross violence. The prosecution put its case in relation to the shooting on the basis that you were either the shooter, or were involved in the shooting on the basis that you had entered into an understanding with the other occupant of the Audi to commit that offence.[2] The jury were also left with a number of statutory alternatives to the offences on the indictment, including intentionally causing serious injury, recklessly causing serious injury, intentionally causing injury and recklessly causing injury.
[2] Crimes Act 1958, s 323(1)(c).
The jury found you guilty of the following charges:
a.Theft;
b.Intentionally causing injury; and
c.Prohibited person possessing a firearm.
Given the way in which the prosecution puts it case, I cannot be satisfied that you were the shooter. Given their verdict, the jury were clearly not satisfied that Mr Machar had suffered serious injury; nor did they make a finding that you planned in advance to have with you and to use the firearm.
The fact that the Audi circled the block several times before the shooting, suggests that you and the other occupant were looking for a specific person, presumably Mr Machar. However, there is no evidence on which I could be satisfied beyond reasonable doubt that you engaged in any further planning of the shooting, such as stealing the Audi for the specific purpose of using it in the shooting.
I am therefore sentencing you on the basis that:
a.The act constituting your theft of the Audi was being in it at the time of the shooting;
b.You were either the shooter (and intended to injure Mr Machar), or had an understanding with the other occupant of the car to intentionally injure Mr Machar; and
c.You were either holding the shotgun, or had access to it by virtue of being in the car with it.
Maximum penalties
The maximum penalties for the offences of which you were found guilty are as follows:
a.Theft (Crimes Act 1958, s 74) – 10 years imprisonment;
b.Intentionally causing injury (Crimes Act 1958, s 18) – 10 years imprisonment; and
c.Prohibited person possessing a firearm (Firearms Act 1996, s 5(1)) – 10 years imprisonment.
Although the three offences have the same maximum penalty, I find that the most serious of your offences was intentionally causing injury, given that it involved the use of a firearm. Both parties agreed that it was open to me to impose an aggregate sentence.
Your counsel submitted that I should impose a term of imprisonment combined with a “weighty” community correction order (CCO). Ideally (from the defence point of view), the term of imprisonment would not exceed your pre-sentence detention (which stood at 248 days at the time of the plea hearing, as well as 52 days of “Renzella” time).[3]
[3] R v Renzella (1997) 88 A Crim R 65.
The prosecution accepted that a combination sentence was within range – given the various sentencing factors I discuss below – but submitted that a head sentence with a minimum non-parole period would better meet the relevant sentencing purposes, including general deterrence, punishment and denunciation.
Before handing down sentence, and without having determined whether or not I agreed that a combination sentence would adequately meet all sentencing purposes, I had you assessed for a CCO.[4] You were not ready to acknowledge your guilt and were assessed as having a high risk of re-offending. You were, nevertheless, assessed as being suitable for a community-based disposition, with recommended conditions relating to community work, supervision, and treatment and rehabilitation in relation to drugs, mental health and offending behaviour.
[4] Monique Dicesare, Community Correction Order Assessment Outcome Report (9 May 2024); Gregory Lane, Mental Health Advice and Response Service (10 May 2024).
Objective seriousness and current sentencing practice
Counsel referred me to a number of comparable cases involving the use of a firearm. I have taken these decisions into account:
a.In DPP v Telford [2010] VSCA 118 (Neave JA, Redlich JA and Lasry AJA):
i.The offender discharged a handgun at close range, wounding the victim in the stomach;
ii.After a trial, the offender was found guilty of recklessly causing serious injury and possession of an unregistered firearm;
iii.The offender was 45 years old, had no priors and good prospects for rehabilitation; and
iv.The sentencing judge imposed a sentence of 30 months imprisonment, suspended for two years.
b.In DPP v Schweizer [2016] VCC 772 (Judge Patrick):
i.The offender fired a pen pistol at the victim’s foot (having previously pointed it at his head);
ii.The offender pleaded guilty to charges of recklessly causing serious injury and being a prohibited person in possession of a firearm;
iii.The offender was 46 years old, and had a significant criminal record including firearms offences and intentionally and recklessly causing injury; and
iv.The court imposed an aggregate sentence of 102 days imprisonment (which the offender had already served by way of pre-sentence detention) in combination with a CCO of four years duration.
c.In Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313 (Weinberg, Osborn and Priest JJA):
i.Shortly after being released from prison, the two offenders embarked on a criminal campaign which culminated in shooting a police officer in the course of evading apprehension;
ii.The shotgun was discharged at the police officer from a few metres away, with 14 pellets lodging in his head;
iii.The offenders pleaded guilty to a number of charges including recklessly causing injury and being a prohibited person in possession of a firearm;
iv.The Court of Appeal considered that the recklessly causing injury offending was either in, or very close to, the worst category; and
v.The offenders were both sentenced to 4 years imprisonment for the offence of recklessly causing injury, and 12 months imprisonment for the offence of being a prohibited person in possession of a firearm (but with no cumulation).
d.In DPP v Shepard [2022] VCC 1293 (Judge Leighfield):
i.The offender shot an acquaintance in the thigh during the course of an argument about the theft of drugs;
ii.The offender pleaded guilty to charges of intentionally causing injury, being a prohibited person in possession of a firearm and committing an indictable offence while on bail;
iii.The offender was 29 years old and had a significant criminal history, including prior weapons and violence offending; and
iv.The court imposed a total effective sentence of 3 years and 3 months imprisonment (including 2 years and 9 months for the prohibited person offence, and 12 months for the intentionally causing injury offence), with a non parole period of 2 years.
e.In DPP v Khoder [2023] VCC 1899 (Judge Sexton):
i.The offender shot his brother-in-law – against whom he had a grievance – in the arm;
ii.The offender pleaded guilty to charges of intentionally causing injury, using a firearm contrary to a firearm prohibition order, and possession of a drug of dependence;
iii.The offender was 36 years old and had an extensive criminal history, including weapons, violence and drug related offending; and
iv.The court imposed a total effective sentence of 4 years and 5 months imprisonment (including 2 years and 6 months imprisonment for the firearm offence, and 3 years and 6 months imprisonment for the intentionally causing injury offence), with a non-parole period of 3 years.
Of course, every case is different, and current sentencing practice is not a controlling factor. Nevertheless, what I take from these decisions is that:
a.General deterrence is of great importance in offences involving the use of firearms;
b.A significant custodial sentence is likely to be imposed for offences of intentionally causing injury which involve the use of a firearm;
c.A significant custodial sentence is also likely to be imposed for offences of possessing or using a firearm when prohibited from doing so;
d.However, where there are sufficient mitigating factors, it may be open to the sentencing court to impose a combination sentence.
Any offending involving the use of a firearm is serious. In this case, you or your co-offender discharged a shotgun at another human being, in a crowded location. As a result of his injuries, Mr Machar spent more than a month in hospital, underwent a number of operations, and suffered irreparable damage to parts of his hand. Other people could easily have been injured as well. I find your offending to be objectively serious. For that reason, general deterrence, just punishment and denunciation are all important sentencing purposes.
Personal circumstances and other subjective matters
You were born in Australia to hard-working migrant parents. Until your mid-adolescence, you were actively involved in your family’s church, including missionary trips to Africa.
However, in your teenage years your behaviour began to deteriorate. You became disengaged at school and began to associate with friends of whom your parents disapproved. After you left school, you attempted a pre-apprenticeship in carpentry but left after three months, and – until very recently – have had no formal employment since then.
You continued to live primarily with your family until someone discharged a firearm at your home. This may have been in retaliation for your shooting of Mr Machar. Your family then moved to Perth for sometime. You moved into an apartment for a number of months until your family returned to Melbourne. You lived with them while on bail.
You have a sister, Lydia, who you have a close relationship with. You are fortunate to have strong support from your family. Your sister and mother provided letters to the court expressing their support for you. Your family were in court supporting you throughout the proceedings and are a protective factor in your rehabilitation.
You are young. You were 18 years old at the time of the offending, and are still only 22 years of age. This is a powerful mitigating factor that means I must give greater weight to your rehabilitation. [5] You have also, for the first time in your life, started work, as a florist which suggests that your prospects for rehabilitation are improving as you mature.
[5] R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 219 A Crim R 369.
You have a limited prior criminal history, involving the possession and use of cannabis. However, your subsequent offending includes drug, driving, bail and motor vehicle theft offences (but not violent or firearms offending). You also committed the current offences while on bail. This suggests that there is some need for specific deterrence.
You were first interviewed in relation to this offending in July 2021. It is now nearly three years later. During that time you have had the prospect of prison hanging over you. I take that into account. You made little progress towards rehabilitation between the time of your arrest and the trial. However, since the trial you have not engaged in any further offending and have a job.
You have recently experienced personal trauma. You have also suffered from stress, anxiety and depression. The prosecution accepts that these conditions mean that prison would weigh more heavily on you, and that prison may have an adverse effect on your mental health.[6] I give full weight to the mitigating factors in your favour.
[6] Verdins, limbs 5 and 6.
However, the objective seriousness of your offending and the importance of general deterrence, lead me to the conclusion that it is necessary for me to impose a head sentence with a non-parole period.
Orders
I am imposing the following aggregate sentence:
a.Two and a half years imprisonment; with
b.A non-parole period of 18 months.
I declare that you have already served 264 days by way of pre-sentence detention.
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