Director of Public Prosecutions v Black

[2019] VCC 2089

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01652

DIRECTOR OF PUBLIC PROSECUTIONS

v

GORDON BLACK

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2019
DATE OF SENTENCE:	12 December 2019
CASE MAY BE CITED AS:	DPP v Black
MEDIUM NEUTRAL CITATION:	[2019] VCC 2089

REASONS FOR SENTENCE
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Subject:Reckless disregard for the safety of any person, prohibited person in possession of a firearm

Catchwords:  Koori Court
Legislation Cited:  Firearms Act 1996, Sentencing Act 1991

Cases Cited:Honeysett v The Queen [2018] VSCA 214, Zogheib v The Queen [2015] VSCA 334, DPP v Graoroski [2018] VSCA 332, The Queen v Rudd [2009] VSCA 213, The Queen v Bradley [2010] VSCA 70

Sentence:Total effective sentence of five years and six months imprisonment with a non-parole period of three years and eight months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. J. Malobabic	Office of Public Prosecutions
For the Accused	Mr. G. Barns	James Dowsley & Associates

HER HONOUR:

1Gordon James Black, you have pleaded guilty on indictment that with reckless disregard for the safety of any person, you used a .22 calibre firearm to discharge a bullet at premises, and also to being a prohibited person in possession of a firearm. 

2In sentencing you for these crimes, I must have regard to the maximum sentence for each of the offences that you have committed.  The charge of discharge firearm at a premises carries a maximum penalty of 15 years imprisonment, being a prohibited person possessing a firearm carries a maximum penalty of 10 years imprisonment.  These maximum penalties reflect the seriousness with which Parliament regards these offences. 

3The circumstances of your offending are set out in a document entitled ‘Summary of Prosecution Opening for Plea’ dated 4 November 2019.  It is what we called an agreed document and represents an acceptance by you of all the elements of the offences to have pleaded and the factual basis on which I am to sentence.

4At the time of your offending, you were residing with your co-accused Bradley Taylor at an address in North Geelong.  You were friends and had known each other for several years. 

5You had been in a relationship with Tamara Bernek for some months.  Ms Bernek was residing between addresses.  On 27 October 2018, James Gray was residing at 33 Fairbairn Drive in Corio, a home surrounded by residential premises on the same side of the road and which was directly opposite parkland. 

6Gray was an associate of Ms Bernek and she had been staying at his house on occasion.  Roy Graf, a friend of Gray's, had spent the previous night at that address and was present during this incident. 

7Around 7 am on 27 October 2018, Ms Bernek returned to 33 Fairbairn Drive, Corio.  She went to the room she was staying in, upset and crying.  In a statement to police, Ms Bernek said that she was upset as she had been chased by a drunken male in the local park and that Roy Graf had entered her room.  She described him as a 'sleazy bloke who always tried to crack onto her.'  She told him that she wanted to be left alone and he kind of, 'cracked-it.' 

8She heard Graf walk into the lounge room, sulking and talking to himself.  She then rang you and told you about the guy in the park and Roy Graf.  In a second call, she begged you to come and get her.  You agreed and told her to grab her things and wait out the front for you. 

9At approximately 8.15 am, you and Mr Taylor attended at 33 Fairbairn Drive, Corio, in response to Bernek's earlier telephone calls.  Mr Taylor drove as you were concerned about not being licensed to drive.  When you arrived, Ms Bernek was waiting with her belongings on the footpath.  You approached her and put her things into the car and she got in.  That could have, and should have, been a moment for reflection.

10Instead, you and Mr Taylor wearing disguise, went to the house and knocked on the front door.  You were in possession of a loaded firearm with Mr Taylor having supplied the ammunition.  At this time, you were a prohibited person as, I am told, you were the subject of a final intervention order. 

11The provisions of the Firearms Act 1996 are directed to the express purpose of ensuring public safety and peace. You acted in blatant disregard of the prohibition to which you were subject.

12Gray opened the front door and saw two males, one holding the .22 firearm, cut down to pistol size, and observed both males wearing hoodies, one with a skull-type bandana wrapped around his face.  Gray immediately closed the front door and whilst he was standing behind the door, you discharged the firearm, narrowly missing Gray's head. 

13Police later attended 33 Fairbairn Drive, Corio, and during a forensic examination, located a single spent cartridge behind a tallboy in the hallway of the house.

14Graf had been sitting in the lounge room when he heard Gray yell, 'There are two blokes outside, they've got guns.'  As Graf ran through the dining area, he heard a pop come through the front door and felt some debris hit him on the right side of the face.  You and Taylor then drove away.

15It is these facts which comprise Charge 1, discharge firearm at premises, with reckless disregard to the safety of any person and Charge 2, being a prohibited person possessing a firearm.

16Gray and Graf did not receive any physical injuries, however, not surprisingly, feared for their lives.  Whilst they have not provided victim impact statements, I have little doubt that this experience would have been terrifying.  It occurred at Mr Gray's residence, an environment in which he and any guest of his was entitled to feel safe. 

17Mr Gray was not the subject of your suggested grievance, yet you persisted.  He was particularly vulnerable, given the unexpected nature of your visit.  He was unarmed and faced with two offenders, one of whom was armed with a sawn-off .22.

18On 1 February 2019, investigators attached to the Armed Crime Squad attended at the Marngoneet Correctional Facility where you were in custody for unrelated matters.  As is your right, you declined to participate in a record of interview with police.

19I note that your co-accused, Bradley Taylor, is yet to have his matter finalised.  The only charge you have in common is Charge 1, discharge firearm.  He is otherwise charged with two charges of being a non-prohibited person possessing a long-arm, one being on 27 October 2018, which is the firearm, the subject of these events, and the other on 26 February 2019.  He also faces summary charges relating to dealing in firearms between dates, and the possession of ammunition.

20These facts are relevant for two reasons.  The first relates to the prosecution opening specific to Mr Taylor.  In that opening, are reported conversations between Mr Taylor and a covert police operative, as to the circumstances of your offending on 27 October 2018.  The contents of those conversations will not be taken into account in sentencing you. 

21The second issue relates to parity.  The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in
co-offender sentences. 

22The parity principle requires a judge to impose the same sentence for the same offending, unless there are distinguishing features in respective roles in that offending or in any other relevant sentencing considerations which warrant differential sentences. 

23I do find your role in relation to the common charge, discharge firearm, to be more significant than that played by Mr Taylor.  I note that he is also charged with possession of a firearm on the relevant date, but as a non-prohibited person, he faces a lower maximum penalty. 

24You were clearly playing the lead role in this offending.  You were responsible for the actual shooting, and your prior history is far more significant than that of Mr Taylor. 

25Whilst I do take into account the parity principle, I am of the view that the sentence I must impose upon you for Charge 1 will have to reflect those differences. 

26This is extremely serious offending.  It is trite to say that your offending was wholly disproportionate to the slight that prompted it.  It also carried with it a degree of pre-meditation.  After Ms Bernek has called, you sourced a gun, disguise, ammunition and travelled to the relevant address in company to a specific target. 

27Whilst I was not initially asked to form a view about which point you formed your intention to discharge the firearm, you obviously had the relevant intention at the time that you did discharge the bullet into Mr Gray's premises.  At that moment, you clearly possessed the firearm for that very purpose.

28There was clearly opportunity for you to desist.  Certainly, when it was Mr Gray that opened the door, if not before, yet you persisted in activity which threatened the lives of the occupants of that house into which you fired your single shot. 

29Firing a shot towards a house knowing there is at least one, if not two people present, is obviously exceptionally dangerous.  You clearly fired through the centre of the house and in Mr Gray's general direction, a person who appears to be entirely innocent in the context of these events.  It was also a populated neighbourhood.  It is more good fortune than good management that no-one was hurt. 

30I do find the objective gravity of your offending to be high.  In the lead-up to this offence, you had already been charged with being a prohibited person in possession of a firearm and of other weapons and ammunition, offending which had occurred on 5 December 2017.  You pleaded guilty to this and other offending on 7 February of this year.

31The fact that you had been charged with a like offence, your criminal history overall, and the planning involved in your offending on 27 October 2018, informs the moral culpability of your offending.  There can be little doubt you were aware of the seriousness of your endeavour. 

32There needs to be a clear message sent to the community that access to weapons by offenders who had no right to do so and in circumstances of such inherent dangerousness, who then choose to use that weapon, is not something that will be tolerated. 

33As such, considerable weight needs to be given to the principle of general deterrence and denunciation for each charge constituting a warning to those considering committing similar offences.  Your offending does demand what is described as condign punishment. 

34The offence of being a prohibited person in possession of a firearm, though committed on the same day and, at the most serious point, at the same time as the discharge firearm offence, is a discrete offence comprising the elements that you were a prohibited person within the meaning of s.3 of the Firearms Act and, that at the time of being a prohibited person, you had in your possession a firearm.  I also note that these particular charges - discharging and possessing the firearm - arise from the one transaction. 

35The closeness in connection between your offences makes it therefore necessary to have regard to the principle of totality and also, to the need to avoid double punishment, given the act of possessing the firearm was essential to the conduct that gave rise to the offence of discharging that firearm. 

36The possession of a loaded firearm cannot be seen as an aggravating feature of a discharge firearm charge which, by its very nature, also entails the use of a loaded firearm.  The same applies to the fact that you fired at premises.  This aspect will be reflected in the individual sentences imposed and the degree of cumulation between the charges which will need to be moderated accordingly.

37I turn now to your personal circumstances.  You grew up in the Geelong area with your father leaving when you were a baby.  You maintain a close relationship with your mother, Kerry Black, and she was present for your plea hearing. 

38I am told you are the eldest of seven siblings.  You have two sisters and five brothers, one of whom is a member of the police force.  One other brother is currently in the Melbourne Remand Centre, and suffers from a brain tumour. You understandably fear for his future and for his health.

39You moved out of home when 13 years of age, and resided with your grandparents in order to escape a violent stepfather.  You left school around the same time and worked with your uncle on fishing boats. 

40You helped set up and run an Aboriginal dance group designed to keep young people out of trouble and you remained with that group until 2010.  

41You also worked with Surfing Victoria from 2008 to 2012 organising programs for Indigenous children.  Until more recently, your connection with your community and Aboriginal heritage was something that was very important to you.

42You have had employment on an intermittent basis and largely in labouring-type positions.  You have five children, four daughters and a son, ranging in age between 4 years and 18 years.  Your 17 year old daughter is currently pregnant and you look forward to being a grandfather. 

43Unfortunately, there are intervention orders in place in relation to two of the mothers of your children, which limit your access to three of your five children.  I am told you remain in a relationship with Ms Bernek and she is a support to you.  

44Your plea took place in Koori Court.  I accept that you pleaded guilty at a time prior to witnesses being called at a committal hearing.  Overall this is a plea of guilty which occurred at an early opportunity and has utilitarian value.  It has saved the court the time and expense of contested proceedings in both the Magistrates and the County Court.  In addition, it saved the witnesses the trauma of having to relive the events of October of 2018. 

45I accept that through your plea and your participation in the Koori Court process, that your plea is one also borne of remorse.  All of these factors need to be reflected in your favour in any sentence imposed. 

46The Koori Court can only hear a proceeding involving an Aboriginal offender who pleads guilty and consents to the matter being dealt with by that court, and where a judge considers the matter is appropriate to come before the Koori Court. 

47The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court through the role played in that process by the Aboriginal elders and respected persons. 

48Others, such as family members and supports, are also able to contribute in what is referred to as a “sentencing conversation.”  The “sentencing conversation” is designed to assist the reform of an Aboriginal offender through a blend of customary law and English common law.  Participation in the process can be more burdensome than appearing in a traditional plea, because of the confronting nature and the inability to hide behind counsel.

49In a decision of Honeysett v The Queen [2018] VSCA 214, the Court of Appeal looked at the Koori Court plea process and stated:

'In our view, in determining the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors including:

'(1) The fact that participation in the process is a voluntary one, maybe confronting to the offender and will likely involve him or her being shamed.  As noted in Morgan, participation in the process may of itself be rehabilitative;

'(2) The fact that an offender is, rather than hiding behind counsel, taking the opportunity to personally, (a) Demonstrate his or her remorse for the offending, (b) Demonstrate insight into the reasons for and the seriousness and effect of the offending and (c) Express any intention to reform and how that will be done, including by participating in available rehabilitation programs;

'(3) The court's assessment of the genuineness of the offender's statements during the sentencing conversation. 

'That assessment should take account all of the information before the court.  Based on the sentencing court's assessment of the quality and genuineness of the statements made by the offender, it is a matter for the individual judge to assess weight in the circumstances of the particular case. 

'In fixing a sentence, it is a duty of the court to impose just punishment adapted to all the circumstances of the case by reference to the permissible sentencing purposes of general and specific deterrence, any means by which rehabilitation of the offender be facilitated, denunciation of the offending and a need to protect the community.'

50Auntie Lyn McInnes and Uncle Rod Jackson were the respective elders who took part in the "sentencing conversation” that included both you and your mother.  The elders knew your mother.  Each of the elders challenged you and you were respectful towards them.  They reminded you of the importance of your community and what it offers by way of assistance and connection.  Each of them emphasised that you need to have a plan for a positive future and quite frankly, to stop using drugs. 

51When your mother spoke of the impact upon her and other family members of your offending and your incarceration, it was apparent that the negative ramifications upon others of your decision-making has not been lost upon you.

52I do find that your participation in the sentencing conversation was a genuine one, an observation that will be taken into account in your favour. 

53Whilst you are only beginning to fully understand the impact of your offending on others besides yourself, you spoke of taking the time to reacquaint yourself with your Aboriginal heritage since going to gaol.

54You have actively involved yourself in culture including participating in the Brothers Day In during NAIDOC Week - which you described as a big step.  You have also returned to painting.  You hope to again mentor others upon your release, especially about the dangers of drugs and that gaol, as you described it, is “not a nice place.” 

55Although no materials were tendered on your behalf, I accept that whilst in custody, you have been attending Narcotics Anonymous and have commenced some courses.

56You do have a prior criminal history.  Your first appearance in the adult jurisdiction was in Geelong Magistrates' Court on 13 February 2001, at which time you were dealt with for a number of dishonesty offences and received a community-based order for a period of 12 months.  There is then a significant gap in your offending history. 

57A number of factors must have changed for you as despite this quite a lengthy period of complying with the community's expectations, you have been offending fairly regularly since 2017. 

58I am told there have been a number of significant deaths in terms of male role models.  You had difficulty with your own family environment, and lost interest in community involvement.  You found respite from those stressors in drug use, particularly ice, which you were using at the time of your offending.  Rather than solving any problems for you, it has created considerably more.

59On 7 June 2017, you were dealt with at Geelong Magistrates' Court for drug trafficking, drug use and driving offences.  You were convicted and placed on a community corrections order for a period of 12 months. 

60Subsequent to the offending before me, you were dealt with at the Geelong Magistrates' Court in relation to gun and weapon offences to which I referred to earlier, contravention of community corrections order - which had been imposed upon you in June of 2017 - driving offences, bail offences and drug trafficking. 

61On 7 February 2019, the Geelong Magistrates' Court convicted and sentenced you to six months imprisonment.  This was your first term of imprisonment and you have remained in custody since. 

62You were charged with the offending before me on 4 March 2019 and were subsequently dealt with at the Geelong Magistrates' Court on 5 March 2019, in relation to charges of damaging property, an assault and received a further 60 days imprisonment, 30 days of which was made concurrent with the sentence you were then undergoing.

63On completion of that sentence, you commenced your remand period.  There were a number of important aspects about this criminal history. 

64Firstly, you have a limited history for violence. 

65Secondly, you are not to be punished for this criminal history a second time.  It is relevant, however, to the weight that needs to be given in sentence to specific deterrence, that is, putting you off further offending, denunciation, protection of the community and your prospects of rehabilitation. 

66In terms of the most recent offending, it is extremely concerning that it has been so prolific and so serious and in such a short space of time.  Supervisory orders do not appear to have been of much assistance. However you are now in custody via both sentence and subsequently on remand and for a constant period for the first time.  There is some sanction and deterrent in this experience.

67The other aspect of your criminal history is the significant gap to which I have referred.  This would indicate that your connection to community has been of value to you in the past, as you have undoubtedly been to your community with your work in both dance and surfing.

68It indicates that with adherence to community you can potentially once again make a positive contribution to it.  Recent history would further indicate that you do need to get drugs out of your life to avoid further intersection with the criminal justice system. 

69Bearing all of this in mind, together with your participation in the Koori Court process, I am of the view that your prospects for rehabilitation remain live, albeit somewhat guarded at this point in time.  You are fortunate to have the ongoing support of your mother and other family members. 

70I do make the ancillary orders as sought for disposal and forfeiture and I understand there is also an application for a forensic sample.  That will involve taking a sample from inside your cheek cells using a cotton bud, you then go on a data base.  If you do not participate in the process, a blood sample can be taken and reasonable force can be used. 

71I am satisfied it is appropriate to make such an order.  It is firstly consented to and my decision to make it also encompasses your prior history, the serious nature of this offending and my view that it is in the public interest to make such an order.

72The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. 

73In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim or victims. 

74I am also required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

75I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offence of prohibited person possess firearm, noting that understandably, my attention was not drawn to any sentencing practices for Charge 1, discharge firearm.

76The discharge firearm with reckless disregard for the safety of any person offence is relatively new.  It was introduced as a response to the increase in what was described as drive-by shootings and therefore specifically relates to the discharge of a firearm at a vehicle, vessel, aircraft or premises. 

77Before it came into existence, around May of 2018, your actions were likely to have been charged as reckless conduct endangering life or serious injury which themselves carry a maximum of 10 years and 15 years respectively. 

78I have had regard to cases that deal with those charges.  They include the decision of Zogheib v The Queen, DPP v Graoroski, The Queen v Rudd, The Queen v Bradley Zogheib v The Queen [2015] VSCA 334, DPP v Graoroski [2018] VSCA 332, The Queen v Rudd [2009] VSCA 213, The Queen v Bradley [2010] VSCA 70, and invited submissions from the parties.  I have had regard to those submissions. 

79Obviously each of those cases to which I have referred have differences from the circumstances of your offending, as are clearly the elements of those offences versus the offence of discharge firearm, the reasons for sentence and maximum penalties.  They are to be used by me as a form of general assistance only.

80The Crown did provide me with a document entitled 'Firearm Offences Current Sentencing Practice' from May 2019 authored by the Sentencing Advisory Council and I have had recourse to its contents. 

81As previously stated, the charge of discharge firearm with reckless disregard for the safety of any person carries a maximum penalty of 15 years.   The gravity of such offending is shown in its prevalence and has potential to undermine a sense of safety in the community.  The second reading speech refers to the fact that:

'The high penalties for these offences recognise the seriousness and potentially lethal consequences of firearm use, particularly the dangers to the community posed by the firing or carrying of a loaded firearm.'

Sentence

82In relation to Charge 1, discharge firearm at premises with reckless disregard for the safety of any person, you are convicted and sentenced to five years and three months imprisonment.  This is the base sentence.

83On Charge 2, prohibited person possess firearm, you are convicted and sentenced to 18 months imprisonment, of which three months is cumulative on the base sentence. 

84This comprises a total effective sentence of five years and six months.  I fix three years and eight months before you are eligible for parole and reckon 179 days as having already been served. 

85Section 6AAA of the Sentencing Act 1991 requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges.

86If not for your pleas of guilty I would have sentenced you to a total of six years and eight months with a minimum of four years and six months before being eligible for parole.  If you could remove the prisoner.  Thank you.  

87MS MALOBABIC:  As Your Honour pleases.

88MR BARNS:  Thank Your Honour.

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