Director of Public Prosecutions v Fazal
[2023] VCC 1970
•3 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00272
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAIWAND FAZAL |
---
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2023 | |
DATE OF SENTENCE: | 3 November 2023 | |
CASE MAY BE CITED AS: | DPP v Fazal | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1970 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – SENTENCE
Catchwords: Handle stolen goods – Possess unregistered general category handgun – Reckless conduct endangering life – Possession of drugs of dependence – Possess unregistered category A longarm – Related summary offences – Possess cartridge ammunition – Assault with weapon – Deal with property suspected of being proceeds of crime – Non-prohibited person in possession of registered category B longarm – Guilty plea – Residence at residential rehabilitation facility as condition of bail – Rehabilitation – Remorse – Family hardship – Anxiety and substance abuse – Whether Community Correction Order open
Legislation Cited: Crimes Act 1958 (Vic); Crimes Act 1914 (Cth); Firearms Act 1996; Drugs, Poisons and Controlled Substances Act 1981; Summary Offences Act 1966; Sentencing Act 1991
Cases Cited:Navaratnam v The Queen [2021] VSCA 26; DPP v Reid [2020] VSCA 247; Kelly v The Queen [2020] VSCA 171; Akoka v The Queen [2017] VSCA 214; Bruce v The Queen [2022] VSCA 100; Worboyes v The Queen [2021] VSCA 169; Brown v The Queen [2020] VSCA 60; The Queen v Verdins (2007) 16 VR 269; Boulton v The Queen (2014) 46 VR 308; DPP v Bourke [2020] VSC 130; The Queen v Madex [2020] VSC 145; Berichon v The Queen; Houssein v The Queen (2013) 40 VR 490; R v O’Rourke [1997] 1 VR 246; DPP v Grabovac [1998] 1 VR 664; DPP v Josefski (2005) 13 VR 85
Sentence: Convicted and sentenced to a total effective sentence of 5½ years’ imprisonment with minimum non-parole period of 3 years.
Convicted and fined total of $1000 for possession of ammunition related summary charge.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Strugnell | Office of Public Prosecutions |
| For the Accused | Mr P A Dunn KC | Emma Turnbull Lawyers |
HER HONOUR:
1MAIWAND FAZAL you are before me to be sentenced in respect of eight charges contained in Indictment No. M11317106, namely –
· Two charges of handling stolen goods (Charges 1 and 8) contrary to s88 of the Crimes Act 1958;
· Two charges of possessing unregistered general category handgun (Charges 2 and 6) contrary to s7B of the Firearms Act 1996;
· One charge of reckless conduct endangering life (Charge 3) contrary to s22 of the Crimes Act;
· Two charges of possessing a drug of dependence (Charges 4 and 7) contrary to s73 of the Drugs, Poisons and Controlled Substances Act 1981; and
· One charge of possessing unregistered category A Longarm (Charge 5) contrary to s6A(1) of the Firearms Act.
2The maximum applicable penalties are:
· Handle stolen goods – level 4 imprisonment (15 years);
· Possess unregistered general category handgun – for first offence 600 penalty units or seven years’ imprisonment;
· Reckless conduct endangering life – level 5 imprisonment (10 years);
· Possess a drug of dependence – because you admit that your possession of these drugs was for a purpose related to trafficking in those drugs of dependence – level 6 imprisonment (five years) and/or 400 penalty units; and
· Possess unregistered category A Longarm – for a first offence 120 penalty units or two years’ imprisonment.
3You pleaded guilty when arraigned in short form before Judicial Registrar Wilson on 30 January 2023. You pleaded guilty when arraigned on all charges before me on 2 October 2023.
4You also consented to a number of related summary offences being heard in this Court and you pleaded guilty to them before me. The related summary offences are:
· Two charges of possess cartridge ammunition whilst not the holder of a licence under the Firearms Act or a permit under s58A of the Act (Summary Charges 4 and 25), contrary to s124(1) of the Firearms Act;
· Unlawful assault of two persons with a weapon, namely a silver revolver handgun (Summary Charge 8), contrary to s23 and 24 of the Summary Offences Act 1966;
· Deal with property suspected of being the proceeds of crime, namely $9,395 in Australian currency; and
· One charge of being a prohibited person in possession of a registered category B longarm, namely a Marlin 1885 Centrefire Rifle, without being the holder of a licence issued under Part 2 of the Firearms Act (Summary Charge 31), contrary to s6(2) of the Firearms Act.
5Related Summary Charges 9, 13, 23, 26, 27 and 30 are withdrawn.
6The maximum applicable penalties for the related summary charges are:
· Possess cartridge ammunition whilst not the holder of a licence under the Firearms Act or a permit under s58A of the Act – 40 penalty units;
· Unlawful assault with a weapon – 15 penalty units or three months’ imprisonment, however by virtue of s24(2) of the Summary Offences Act the maximum applicable penalty where the assault is with a weapon is two years’ imprisonment;
· Deal with property suspected of being the proceeds of crime, namely $9,395 in Australian currency (Summary Charge 14), contrary to s195 of the Crimes Act – two years’ imprisonment; and
· Being a non-prohibited person in possession of a registered category B longarm without being the holder of a licence issued under Part 2 of the Firearms Act – 120 penalty units or two years’ imprisonment.
Circumstances of offending
7The circumstances of offending are set out in the Summary of Prosecution Opening for Plea dated 23 January 2023, tendered as Exhibit A. You agree that the facts asserted in Exhibit A are accurate, and you will be sentenced on the basis of those agreed facts. A copy of Exhibit A will be attached to the reasons for sentence as ‘Annexure A’. I shall briefly summarise the circumstances of offending:
Charge 1 on Indictment – Handle stolen goods
8On 18 January 2021, you inspected a commercial premises at 1/10 High-Tech Place in Rowville that was available for lease. This property was owned by Donald Bromley. When the property was untenanted, Mr Bromley stored his Jayco caravan in the unit. You saw the caravan parked at the unit when you inspected the property.
9At the time of applying to lease Mr Bromley’s unit, you had with you a Victorian driver’s licence in the name of Michael Basrat, which you presented to the leasing agent. You signed the rental application for the unit under this name, identifying yourself as Michael Basrat. Your girlfriend, Dilanur Erbasi, signed the lease as witness.
10Under the terms of the lease, you took formal possession of the unit on 19 February 2021. Two days before this, Mr Bromley’s caravan was stolen from the unit. There was damage to the front glass door of the unit and the roller door was left up. CCTV footage from 12.09 am that morning depicts your vehicle entering the premises of 1/10 High-Tech Place and leaving 6 minutes later towing a caravan.
11The stolen caravan was later discovered on 12 March 2021 at 39 Colrado Court in Hallam, a commercial premises also leased by you.
12Although an inference might be drawn from these facts that you were the thief who stole the caravan after committing a burglary at the unit, the prosecution has accepted your guilty plea to the offence of handling stolen goods, and you are to be sentenced on that basis only.
Charge 2 on the Indictment – Possess unregistered general category handgun; and related Summary Charge 4 – Possess cartridge ammunition without a licence
13On the morning of 22 March 2021, you were seen in a vehicle by police outside your leased property at 1/10 High-Tech Place in Rowville. You left the premises at 11.40 am. Ten minutes later, police who had attended the premises in response to a report made by a member of the public who had found a black bag containing what appeared to be a firearm, recovered your black satchel bag which you had earlier left at the premises. Your bag was found to contain the following items:
(a) A modified semi-automatic .22 calibre firearm with black/brown handle and silver barrel (that is the subject of Charge 2 on the iIndictment);
(b) One .22 calibre ammunition round (that is the subject of related Summary Offence Charge 4);
(c) $295.55 in cash; and
(d) A keyring with assorted keys and black/blue fob.
14While police were still at the premises, your father, Zelmai Fazal, attended and told police that he was there to collect a ‘black man handbag’. He said that you had left it there and asked him to collect it for you.
15Police seized the bag and all of its contents. A DNA swab was taken, and subsequent analysis confirmed the presence of your DNA on the firearm.
16There is no evidence before me to say how long these items were in your possession, or for what purpose you had them; however, I shall later mention, because your counsel has informed the Court that during this period you were trafficking in drugs of dependence, I infer that your possession of these items was associated with criminal activity.
17The firearm was located together with its ammunition in an area accessible to the public. It was only by chance that they were discovered by a responsible and law-abiding adult who decided to notify police immediately.
18Whether these items were left behind by you haphazardly or deposited intentionally, your actions placed the community at risk of significant harm.
Charge 3 on Indictment – Conduct endangering life: discharging a firearm in the direction of a residential building; and related Summary Charge 31
19On the evening of 1 June 2021, you were inside your apartment at 2104/241 Harbour Esplanade at Docklands with two other men. You had in your possession a Marlin 1885 45-70 Government Lever Action rifle. At approximately 8.45 pm you fired the rifle in the direction of the Melbourne Central Business District. The bullet entered through the window of an apartment located on La Trobe Street. The occupant of this apartment, Mr Juan Salgado, was then seated at his dining room table. The bullet entered through a west-facing window, struck the kitchen sink tap and microwave, and finally landed on the floor of the apartment. Mr Salgado called Triple 0 and police attended, establishing a crime scene.
20Expert analysis of the scene conducted by ballistics expert, Leading Senior Constable Ruiz, established the most likely position from which the shot was fired as being the vicinity of your apartment in Docklands.
21On 25 June 2021, police executed a search warrant at your apartment. They located the Marlin 1885 45-70 Government Lever Action rifle (that is the subject of related Summary Charge 31). Ballistics analysis confirmed that the firearm projectile recovered from Mr Salgado’s apartment was discharged from this firearm. Your DNA was found on the trigger.
22When the rifle was seized by police, a telescopic sight was attached to the receiver which had a range of between two to seven magnifications. The scope was tested for accuracy and this rifle at a distance of 34 metres, and it was found to impact its target approximately 15 centimetres left from the point of aim.
23Mr Salgado’s apartment on La Trobe Street is situated directly opposite Victoria Police Headquarters and Victoria Police Crime Command Department, which are located on the corner of Spencer and La Trobe Streets.
24Your counsel, Mr Dunn KC, submitted that it cannot be proved beyond reasonable doubt that you were aiming at the Victoria Police building when you discharged the firearm.
25He noted that there was no evidence of animosity between you and Victoria Police, and that your dealings with them had been limited, until this point. He submitted that the conduct was more likely to be ‘skylarking’, or illogical behaviour influenced by the effects of drugs or alcohol. When pressed, he conceded that you had no memory of the event. So your counsel’s submission is no more than speculation.
26It is the Prosecution case that you were most likely aiming the firearm at the police building but missed. That said, the learned prosecutor, Ms Strugnell, conceded that this theory could not be established beyond reasonable doubt. Ms Strugnell further conceded that it was not possible to prove, beyond reasonable doubt, that the scope was attached to the firearm at the time you fired it in the direction of Mr Salgado’s apartment. If that fact could be established to the requisite degree, it would be safe to infer that you aimed the firearm at the Victoria Police building and missed because the scope was off by 15 centimetres at 34 metres. This assertion is supported by the ballistics report; however, I am unable to find, beyond reasonable doubt, that you aimed your shot at the police building. Regardless, the simple fact is that you fired a shot into a densely populated business and residential area and that this had the real potential to endanger life. That is the subject of Charge 3 on the Indictment.
27During the execution of the search warrant at your apartment, police observed damage to the balcony glass (splintering) and aluminium-framed balustrade (indentation and scratching). A police ballistics report confirmed that the damage to the aluminium balustrade was caused in a separate incident in which it is alleged that you attached a weapon to the balcony balustrade and fired it in the direction of the rear façade of the Victorian Police Headquarters at 313 Spencer Street Melbourne. I hasten to add that you are not charged with any offence arising from this incident. And your offending in relation to the charged act is not aggravated by this uncharged act.
Charge 6 on the Indictment – Possess unregistered general category handgun; and Related Summary Charge 8: Rolled up charge - Unlawful assault with a weapon
28On 23 June 2021, you were driving a dark grey Maserati outbound on the Monash Freeway. Lucas Demedici and Bradley Sultana were travelling in their work truck when you cut them off with your car. Mr Sultana sounded the truck’s horn and both he and Mr Demedici threw their hands up in frustration. As a consequence, you slowed your vehicle down and changed lanes so that your vehicle was parallel to the passenger side of the truck. You then pointed a small silver revolver at the victims and said, ‘What did you say, cunt?’. The victims slowed down and continued outbound on the Monash freeway, whilst your vehicle came to a stop in the emergency lane. That is the subject of related Summary Charge 8.
29A firearm matching the description provided by the victims was seized when police executed the search warrant at your apartment on 25 June 2021. That weapon was found to contain two live and three spent ammunition rounds. Your DNA was found on this firearm. That is the subject of Charge 6 on the Indictment.
Execution of Search Warrant
30On 25 June 2021, police executed a search warrant at your apartment, 2104/241 Harbour Esplanade, Docklands.
31After you failed to present at the front door, police forced entry into your apartment. You told police that you were having a shower, although there is no evidence that this is what you were actually doing. When you eventually presented yourself, you refused to show your hands and resisted arrest.
32During the execution of the search warrant, a number of items were located and seized including:
(a) A silver Apple iPhone submerged in the toilet bowl;
(b) A Mercedes vehicle key within a vase on the dining table (belonging to vehicle AXW 208, which was seen earlier by police in the car park of your building, in the vicinity of your own vehicles);
(c) A Range Rover key within a vase on the dining table (belonging to vehicle IMA 1UD, which was also seen earlier by police in the car park of your building, in the vicinity of your own vehicles);
(d) $435 in cash within a vase on the dining table;
(e) A black Apple iPhone in a black wallet case on a coffee table within the lounge room;
(f) Large multi-coloured nylon bag containing vacuum-sealed bags of cannabis (this relates to Charge 4 on the Indictment);
(g) One round .45 calibre ammunition casing (spent) within a ‘Gucci’ suitcase;
(h) Black bag containing firearms within storage cupboard in the lounge/dining area, namely:
(i)A Marlin 1885 45-70 Government Lever Action rifle (this relates to related Summary Charge 31); and
(ii)Sawn-off over/under shotgun (this relates to Charge 5 on the Indictment).
(i) One box of Winchester Super X 12-gauge shotgun cartridges (this is the subject of related Summary Charge 25);
(j) One Box Remington 45-70 ammunition rounds (this is also the subject of related Summary Charge 25);
(k) Black plastic clip case containing handgun and ammunition in the storage cupboard in the lounge/dining area particularised as follows:
(i)Zip lock bag containing 4 shotgun cartridges (that is the subject of related Summary Charge 25) and two spent .45 calibre rounds;
(ii)Homemade silver revolver containing two live and three spent ammunition rounds (that is the subject of Charge 6 on the Indictment); and
(iii)Two boxes of CCI brand .22 calibre ammunition rounds (that is the subject of related Summary Charge 25).
(l) Plastic zip lock bag containing unspecified quantity of methylamphetamine in a drawer of the TV cabinet (that is the subject of Charge 7 on the Indictment – Possession of a drug of dependence);
(m) A combination safe within the wardrobe of the bedroom containing:
(i)$8,960 in cash;
(ii)Multiple identification cards/documents in various names;
(iii)Victorian Drivers Licence in the name of Michael Basrat; and
(iv)Australian passport in your name;
(n) Maserati Ghibli sedan bearing registration plates BDB 228 in the car park; and
(o) 2016 Porsche 911 coupe bearing registration plates AZX 102 in the car park.
33As a result of the execution of the search warrant you were charged with the following charges:
Summary Charge 31 – Possess registered category B longarm without a licence
34This refers to the Marlin 1885 45-70 Government Lever Action rifle, which I have already referred to when discussing Charge 3.
Charge 5 on the Indictment – Possession of an unregistered category A longarm
35While searching a storage cupboard inside the lounge/dining area of your apartment, police located a black bag containing a sawn-off shotgun as well as the category B longarm that is the subject of Summary Charge 31. Ballistics analysis identified this as a 12-gauge Baikal IJ-27E model which was capable of discharge.
36A swab was taken, and your DNA was found on the trigger.
37A box labelled Winchester Super X containing 25 ammunition rounds was also seized by police. These were found to be suitable for use in this firearm.
Charge 6 on the Indictment – Posses unregistered general category handgun
38The final firearm seized by police was a homemade silver revolver containing two live and three spent ammunition rounds. Your DNA was located on this item.
39I have referred to this weapon when discussing Summary Charge 8.
Summary Charge 25 – Possess cartridge ammunition without a licence
40As referred to when discussing details of the search warrant, police located various items of cartridge ammunition, which are the subject of this charge:
(a) One box of Winchester Super X 12-gauge shotgun cartridges;
(b) One box of Remington 45-70 ammunition rounds;
(c) Four shotgun cartridges; and
(d) Two boxes of CCI brand .22 calibre ammunition rounds.
Charge 4 on Indictment – Possess cannabis; and Charge 7 on Indictment – Possess methylamphetamine
41During the execution of the search warrant, police seized 2.26 kilograms of cannabis L from your apartment.
42A plastic zip lock bag containing methylamphetamine was also seized. No drug analysis was conducted on the methylamphetamine, so I am unable to ascertain the quantity involved. Your counsel has, however, conceded that your possession of both the cannabis and methylamphetamine was for a purpose related to trafficking in those drugs of dependence.
Charge 8 on the Indictment – Handle stolen goods
43I have mentioned that during their search of your premises, police located and seized two sets of car keys belonging to stolen vehicles, namely a Mercedes (registration AXW 208) and a Range Rover (registration IMA 1UD).
44Whilst it is unclear whether these vehicles were recovered as part of this investigation, police had previously identified them parked at your property, when they were conducting surveillance of the area on 24 June 2021. In any event, by your plea to this rolled-up charge, you admit that you handled both vehicles.
Summary Charge 14 – Deal with property suspected of being proceeds of crime
45During the execution of the search warrant, police located a total of $9,395 in Australian currency, suspected of being the proceeds of crime.
Arrest and Interview
46You participated in a record of interview at Melbourne West Police Station on Friday 25 June 2021.[1]
[1]Depositions pages 461 – 481.
47You acknowledged that you had the right to communicate or attempt to communicate with a legal practitioner, however you declined to do so.[2]
[2]Q 4-5
48You answered, “no comment” in relation to questions about the handgun that was found near 10 High-Tech Place, Rowville.[3]
[3]Q 34-35
49You also answered no comment in relation to the bullet that entered the apartment at 585 La Trobe Street, Melbourne.[4] When asked whether you could recall your whereabouts at the time of incident, you responded, “no, I can’t. No comment.”[5]
[4]Q 36
[5]Q 65
50In relation to the assault of Lucas Demedici and Bradley Sultana, you told police that you did not remember where you were at the time of the offence. [6] Also, you did not recall any vehicles that you were driving in the month of June.[7] Generally, in relation to this offence, you responded to questions with, “no comment”.
[6]Q 11
[7]Q 15-16
51When asked about your association with the 2019 Maserati that was linked to this offence, you answered, “no comment”.[8] When police told you that this car had been seized, along with a Porsche 911, you asked police why it had been seized. The transcript of the record of interview records:
[8]Q 31
A 43
Why - why have they been seized?
Q 44
As evidence. Would you like me to go back?
A
No.
Q 45
In the incident form? The grey Maserati bearing the registration BDB-228 was involved in a road rage incident, where a small silver revolver handgun was produced at our victims. That vehicle was located parked at 241 Esplanade, Docklands.
A
So why do youse assume it was me? Why did you assume it was me?
Q 47
We're not assuming.
A
Youse are, youse are - - -
Q 48
We're explaining it - - -
A
- - - questioning me of it.
Q 49
- - - to you.
A
Why are youse just saying it was me? On what evidence? Someone made a phone call and said it? Could be anyone can make a phone call and say someone did this, that someone did that. They have a video-recording? Is there a recording of the - like, seeing me do it?
Q 50
We've got witness statements.
A
Witness statements?
Q 51
From two victims, with a description of the offender and the circumstances of the incident. The Porsche that was seized was a 2016 911 coupe with registration AZX 102.
A
What's that got to do with me?
Q 52
Is there anything you wish to declare in relation to those two vehicles?
A
No.
Q 53
Will there be anything located in those two vehicles?
A
No. That's what youse got it, to search it?
Q 54
Correct.
A
Okay.
52A list of items seized during the search of 2104/241 Harbour Esplanade, Docklands was read out. In relation to the $9,395 that was found, the record of interview records the following exchange:
Q 59
…a large quantity of cash - - -
A
What's a large quantity of cash? 400 bucks?
Q 60
I have ‘a large quantity of cash’ and another entry of $435.
A
Where did you find the large quantity of cash?
Q 61
In the wardrobe, in a safe, on the right-hand side, on the floor.
A
Oh, okay.
53As can be seen, you were far from frank with police when they interviewed you.
Gravity of offending
Handling stolen goods
54Handling stolen goods is generally regarded by Victorian courts as a more serious offence than theft. And generally through the modern history of the offence, this has been reflected in its greater maximum penalty. Gravity is generally linked to the role of the offence in ensuring the success of the forms of stealing which precede it in point of time. The handler indirectly, at least, encourages the thief.
55Among the matters to be considered are:
(a) The period of offending; and
(b) Whether the offender was in the business of handling stolen goods; and
(c) The amount involved.
56In relation to these charges, your counsel described the conduct as ‘spontaneous problem solving’ done at a time when you were, ‘not very sober or clear thinking’. He suggested that it had been your intention to sell the stolen items to help pay off some of your debts, although you never did.
57Ordinarily in such cases, the principle of general deterrence is a significant sentencing factor.
Reckless conduct endangering life
58As was said in Navaratnam v The Queen:[9]
As has been observed previously, the charge of reckless conduct endangering life covers a broad range of conduct.[10] The conduct may result in quite serious injury, none at all or something in between those two extremes. This can make the sentencing task difficult. For example, as in the case before the court, truly comparable cases are difficult to find. Quite different factual circumstances lead to different conclusions.[11]
[9][2021] VSCA 26
[10] DPP v Reid [2020] VSCA 247, [101] (Priest, T Forrest and Weinberg JJA)
[11]Navaratnam v The Queen [2021] VSCA 26 at [30]
59This must be regarded as a serious offence, and general deterrence is a significant sentencing consideration. In particular:
(a) You shot at a police building, or randomly into a densely-populated business and residential area. Thus creating the very real risk of serious injury or death to any member of the community. In so doing, you showed complete disregard for their welfare;
(b) At the time you discharged the firearm you were not under any threat of personal violence – no one had threatened you and there is no suggestion that you were acting in self-defence;[12] and
(c) There is no suggestion that you committed this act because your reasoning in decision-making was impaired.[13]
[12]Kelly v The Queen [2020] VSCA 171
[13]Navaratnam v The Queen [2021] VSCA 26 at [29]
60In these circumstances, I consider this to be a serious example of this category of offence.
Firearms offences
61Firearms offences are generally considered to be serious. Among the matters to be taken into account in assessing the gravity of such offences are:
· The number of firearms involved – the larger the number of firearms possessed, the greater the seriousness of the offending;
· The nature of the firearms – modified firearms for ease of concealment and firing, and high-powered firearms that are capable of great lethality, are considered more serious;
· Whether the weapon is loaded and/or the presence of ammunition;
· Where the firearm and ammunition are not kept in a secure location, are readily accessible and capable of being retrieved and discharged quickly;
· The duration of possession – possession for a longer period may aggravate offending. But possession for a short period may not mitigate offending, if it was by design to reduce the risk of being caught;
· The nature and extent of any prior criminal history of the offender; and
· The monetary value of the firearms may also be relevant.[14]
[14]See Victorian Sentencing Manual, published by the Judicial College of Victoria, chapter 33.2.1
62In a recent Court of Appeal decision of Haddara v The King,[15] Justice of Appeal Taylor considered the principles relevant to determining the objective seriousness of firearms offences. Although Her Honour was considering a specific firearms offence that you do not face, the matters Her Honour identified are, in my judgment, also relevant to a charge, the substance of which involves the deliberate discharge of a firearm. The matters to be considered include:
[15][2023] VSCA 250
(a) The degree of pre-meditation and planning involved in the shooting, including the use of stolen or hired vehicles, the sourcing of a weapon and a ‘stealth’ approach to the target;
(b) The nature of the firearm used. Use of a semi-automatic or automatic high-powered firearm will be more serious than a lower calibre weapon;
(c) The location of the target. If a house or vehicle is in a built-up area, the risk to safety increases;
(d) Relatedly, the time of day of the shooting. The discharge of a firearm into a house in the early hours of the morning is a risk to sleeping occupants. The discharge of a firearm in broad daylight in a busy area is an equally serious risk;
(e) Knowledge by the offender that the targeted premises or vehicle is, in fact, occupied;
(f) The motivation for the shooting;
(g) The aim of the firearm and the degree to which bullets or pellets penetrate the target;
(h) The role played by the offender in the shooting; and
(i) Whether the risk eventuated by any person being injured.[16]
[16]Haddara v The King [2023] VSCA 250 at [43]
63General deterrence is a paramount consideration for firearms offences.[17]
[17]Bruce v The Queen [2022] VSCA 100 at [33] – [36]
64As Ms Strugnell correctly noted, Charge 1 on the Indictment carries the highest statutory maximum penalty; however, the most serious charges relate to reckless conduct endangering life and your possession of multiple firearms.
65The range and quantity of firearms in your possession, both at Docklands and Rowville, are of serious concern. Three of the four firearms were unregistered, and none were securely stored. The firearms were all capable of discharge and your DNA was located on the trigger of each of them. They were located alongside ammunition and were all capable of inflicting fatal injury. The sawn-off shotgun had been modified to make it easier to carry and conceal.
66Given the context in which the firearms were seized, I am satisfied that they were possessed for the purpose of criminal activity. I am satisfied that at least one of the firearms was used in relation to a criminal offence currently before this Court. The others were located in your apartment, alongside ammunition, drugs of dependence, stolen goods, and $9,395, suspected of being the proceeds of crime. It is also conceded that you were engaged in trafficking drugs of dependence at the relevant time. That said, there is some overlap between your possession of two of the firearms and some of the offences on the Indictment:
(a) The charge of reckless conduct endangering life; and
(b) The related summary charge of assault with a weapon.
As such the Court must be careful to avoid inflicting double punishment.
Possession of drugs of dependence
67The possession of drugs referred to were for the purposes related to trafficking in those drugs. Principles of general deterrence, denunciation and condemnation, and protection of the community, are dominant sentencing factors.
Assault
68Assault can be committed in a wide variety of circumstances, and as such, the gravity of a particular crime will depend on the surrounding circumstances.
69In the road rage incident, you assaulted two victims by placing them in fear that they would be shot. I regard this rolled-up charge as a serious example of this category of offence, notwithstanding the fact that no actual violence was inflicted.
70It is also highly concerning that this offence occurred in broad daylight, in the middle of a busy freeway.
71General deterrence is an important sentencing consideration for this type of offence.
Impact of your offending
72In his Victim Impact Statement tendered as Exhibit C, Mr Salgado stated:
[I felt] fear and/or scared as I didn’t [know] what was happening. At the beginning, I thought the shot was from the police building. While the police was doing the investigation, they told me to better – don’t go to the flat for some time, as it was a case of mistaken identity. So I was nervous about this.
Never expect this kind of things in Australia, so I was frustrated because I was unable to do anything about the situation.
…
[The psychological effects] - anxiety of something happen to me or people around me... Thoughts about possibly losing my life just because some people were playing with a gun.
…
[The financial impact of the crime - I had to] rent another place while the investigation was being done, [damage to the flat] curtain, water, glass, microwave, mini fridge.
Loss of earnings, stop work while everything was fixed and the investigation taking place.
Plea in mitigation
73Your counsel, Mr Dunn KC, acknowledged the gravity of your offending; however, he submitted that there are compelling reasons why I should release you on a Community Correction Order. I now turn to the matters advanced on your behalf in mitigation of penalty.
Personal history
74You are now aged 30 years. You are the child of two Afghani refugees, who fled Kandahar for Australia in 1980, during the Soviet-Afghan War. Although you were not born until 1993, I have no doubt that your parents’ experience impacted upon your upbringing in Australia. Your father worked at the Victoria Market selling off-brand shoes, and your mother was admitted as a legal practitioner in the Supreme Court of Victoria in 2004. Your parents separated in 2006, when you were aged 13 years, as a result of your father’s ice addiction.
75You left school in 2009 and began an apprenticeship as a carpenter. And in 2012, you undertook a building, construction, survey and project management course at Holmesglen TAFE, whilst also working at the markets on weekends.
76Between 2015 and 2019, you were employed in various positions in the building, landscape and excavation industry, before starting your own business in 2019, with the purchase of a second-hand excavator and tipper truck.
Prior criminal history
77You have limited prior convictions and court appearances.
78On 30 July 2014, you appeared in the Magistrates’ Court at Melbourne, on two charges of selling goods to which false registered trademarks had been applied. Without conviction, you were discharged under s19B of the Crimes Act 1914 (Cth), upon entering a $25,000 recognisance to be of good behaviour for 1 year, with a condition that you pay $4,000 to the Court Fund.
79On 29 July 2016, you again appeared in the Magistrates’ Court at Melbourne, on four charges of exposing goods for sale with falsified registered trademarks. You were convicted and released under s20 of the Crimes Act 1914 upon giving security by a $10,000 recognisance on condition that you be of good behaviour for two years, and that you pay a pecuniary penalty of $2,000 to the Commonwealth.
80As I understand it, all of these offences occurred in connection with your father’s market business.
81There are also subsequent matters, which do not count as prior convictions. On 7 September 2021, you appeared in the Magistrates’ Court at Ringwood, on four charges of drive whilst authorisation suspended, and one charge of unlawful assault. In respect of these charges you were sentenced to an aggregate term of three months’ imprisonment. You were convicted and discharged on other driving offences. You appealed against these convictions and sentences, on 22 September 2021. Your appeal was allowed in the County Court at Melbourne. On the charge of unlawful assault, you were sentenced to 42 days’ imprisonment, with a period of 49 days of pre-sentence detention having been declared as served. You were fined in relation to the driving charges. The circumstances of the assault have not been explained by your counsel.
82On 18 November 2021, you appeared in the Magistrates’ Court at Dandenong on a charge of making a false report to police. You were convicted and fined $1,000. Your counsel did not elaborate on this offence.
83I stress the subsequent offences are not prior convictions.
Your reason for offending
84Overall, your counsel submitted that your behaviour was erratic and heavily influenced by your poor mental health and drug use at the time of offending; however, no medical or psychological evidence was tendered in support of this claim. The principles enunciated in Verdins[18] were not invoked and are not engaged.
[18]The Queen v Verdins; The Queen v Buckley; The Queen and Vo (2007) 16 VR 269
85Your counsel has argued that the reason for your offending stems from the aggravation of your mental health issues during the COVID-19 pandemic, when you turned to drug use in order to cope.
86Your counsel has submitted that you were hit hard by the pandemic. Your business failed during the various lockdown periods, as there was no work available for you. As a result, you were unable to meet your financial obligations. You began to experience symptoms of anxiety and depression, and eventually you attended hospital whilst suffering an anxiety attack. You were prescribed antidepressants.
87As mentioned earlier, according to your counsel, you handled the stolen goods with the idea that you could sell them in order to support yourself.
88No satisfactory explanation was offered as to why you fired a shot into a building in the Central Business District of Melbourne, particularly as you claim to have no memory of the event.
89In relation to the assault with a weapon which you pointed at the victims during the road rage incident, when interviewed by police you effectively denied the charge, asking whether the police had proof that you were the offender. Moreover, you have never explained why you possessed that firearm and why it was in your car on that occasion.
90You have offered no explanation as to why you left the firearm at High-Tech Place in Rowville, or why you had so many firearms in your apartment, together with ammunition. You have not explained what you were intending to do with these weapons or indicated how long they had been in your possession.
91You gave no explanation about the cash found in your apartment.
92Your counsel did, however, readily concede that your possession of the drugs of dependence were for the purposes of trafficking in those drugs.
Guilty plea
93Your counsel submits that notwithstanding the history of the proceedings, I should regard you as having indicated your guilty plea at the earliest opportunity.
94As is indicated in Exhibit A, your case has some history to it. The matter proceeded by way of contested committal on 23 and 24 February 2022. Two witnesses were cross-examined: the ballistics expert Mr Ruiz, and Mr Luke Mason, the informant. At the conclusion of the committal, you stated that you intended to plead not guilty to the charges.
95After the committal, there were extensive negotiations between your legal representatives and the prosecution. Your first plea offer was made on 23 March 2022. The matter finally resolving in late November 2022, and certainly by 1 December 2022.
96As mentioned, you were arraigned in short form on 30 January 2023.
97A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount.
98In determining the weight to be given to your plea of guilty, I take into account the following matters:
(a) the timing of your plea, which because of the extensive negotiations can be considered as having been indicated to the prosecution at a relatively early time, based on an appropriately framed Indictment;
(b) you are entitled to a statutory discount because of your plea;
(c) you have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience of giving evidence upon your trial;
(d) I am satisfied that your plea indicates a level of remorse; and
(e) there is enormous social utility involved in your guilty plea, and by taking this course, I accept that you have facilitated the course of justice.
99Dealing with the question of the social utility inherent in your guilty plea, I note that additional weight must be given to this factor because of the impact that the worldwide pandemic of COVID-19 has had on the criminal justice system.[19]
[19]Worboyes v The Queen [2021] VSCA 169, particularly at paragraphs [34] – [39]
100In addition to the extra weight that your plea must attract because of COVID-19, I also take account of the potential impact that COVID-19 might have upon the service of a sentence of imprisonment, including:
(a) You may face a higher risk of contracting the disease whilst in custody;[20]
(b) There is an increased likelihood of periods of quarantine and isolation; and
(c) The pandemic may cause additional stress and concern for prisoners and their families, as it is for every member of the community.[21]
[20]The Queen v Madex [2020] VSC 145 at paragraphs [51] – [52]
[21]Brown v The Queen [2020] VSCA 60 at paragraph [40]
101Although many, if not all, of the COVID-19 restrictions seem to have eased or been revoked, it cannot be said that the pandemic has been eliminated in the community. Accordingly, it is possible that the service of a sentence of imprisonment may carry the risks and burdens to which I have just referred.
Remorse
102I note that you wrote a letter to the Court dated 29 September 2023, which was tendered on your behalf.[22] Your letter details your remorse and the guilt you feel over your offending, and identifies the steps you have taken whilst on bail to reform. Your letter states:
[22]Exhibit 11
...
I am writing this letter to express my remorse and guilt.
I completely regret my behaviour and my actions in regard to the offending committed by me in 2021. I understand that the offences committed by me were serious and caused significant harm to the victims. It is important I acknowledge the harm and loss that was caused by my actions.
I do not want to cause any further harm to anybody in my community and will never ever cause any harm to anybody in my community.
It is also important for me to mention that I would never been the type of person to commit these offences if I was in the right mind set, as I am now. I do not want to blame anything for the cause of my actions. But as I am now sober, and have been since my initial incarceration, I can see clearer than ever that my drug use was a major contributor to my actions.
I started using heavy drugs when the first lockdowns hit us in 2020. My drug use went from smoking marijuana on weekends, to daily use of anything I could get my hands on, whether it was methamphetamine or heroin.
I started my business in 2019, and it was going pretty good. I was doing garden maintenance working for myself, and because that was successful, I thought it would be a good time to expand my business. I bought a second-hand excavator and tipper truck and took my business to the next level. I had borrowed money from family to expand the business and buy the machinery that I needed. So I felt a sense of, I really need to do well and show my family that the money that they had lent me was going to be put to good use. Then COVID hit. I was not an essential worker, so I was not able to work. And then the heavy lockdowns hit, and I was feeling as lost as ever. Not being able to work, not being able to go out and socialise, I hit a wall. And the only thing that would give me some comfort and help me escape was the drugs.
Nobody would mention it, but I felt everybody was disappointed in me, especially those who expected me to thrive with my new business. And that was another contributor to my horrible substance abuse issues.
Then I was arrested, and the shame and guilt I felt having to tell my family and friends about the crimes I had committed was unbearable. I did not know how to tell them what I had done. Because once I had a clearer mind, it would haunt me, as I am not a violent person. So that affected me a lot as well. I could not imagine what everybody else thought.
While I was incarcerated, I had a lot of time to think I was put on antidepressants, also. So my moods were starting to be a bit more stabilised, and this meant I could really have one on one time with my thoughts. This was also a really tough pill to swallow, as the consequences of my horrid actions were hitting me.
Once I was bailed to The Cottage in Shepparton, this is where I made a lot of progress. I engaged in my counselling with members there and also actually learnt about the full impact that the drugs were having on me and my life. I turned to the drugs because I was not able to fulfil myself and throwing myself into my work. And then because I started make a lot of – it started to make a lot of sense to me. At my time at the cottage, I really made a plan for myself. This plan included how I wanted to get back into my business upon my release, how I wanted to expand my business but, most importantly, how I need to clean up the mess I had made and really apologise to the people that I affected and shamed.
Upon my release back into my community, I threw myself into my work, and feel I made a lot of progress in my life. I gained the trust and acceptance of those close to me and proved to everybody that I am 100 per cent done with a life of crime. And want to continue to live my life as the man I used to be previously, before all of the drugs and the crime. But honestly, I believe I am an even better man today. I am still on antidepressants, managing my mental health issues, and this has allowed me to effectively control my emotions and think properly before I make any decisions in my life.
Today, I am a proud business owner, a supporting partner to my girlfriend and a good son to my parents, whom I dragged through the mud.
I own three trucks in total, two of them which I had purchased with finance this year. And they are working every day with a company called Starbuck, where they provide earth moving services all over Melbourne. And I also provide excavation services with my excavator, for private jobs all over Melbourne. We obtain jobs for the excavator with the help of apps such as hipages and ServiceSeeking, but I also get word of mouth jobs as well.
I run my business myself but I also have some subcontractors I hire on a frequent basis, as my business has grown rapidly since my release.
My job allows me to support my mother, whom is unemployed. And also my father, who receives Centrelink benefits. Being able to finally be clear and support my friends and family gives me a great sense of relief as I believe now, more than ever, I need to help everybody I disappointed and let down, due to my actions at the time of my offending.
I have plans to further expand my business, as now I am enrolled into a course to prepare for the exam to get my domestic builder’s licence. And I find this will be a great licence to have and will give me endless opportunities in this future.
If I were to be incarcerated, I worry about the effects it may have on my business. And also family that relies on me. I don’t have anybody that can afford to service the finance or my mortgage, and this stresses me immensely. It will be a roadblock in the progress I have made. And is a really big fear I have had since I was bailed into my community. I am the sole bread winner in my family, and I also support my girlfriend, who is a university student. I don’t want to burden my family any more than I have already.
I believe I have taken the correct steps to rehabilitate myself, as I have been sober for over a year. And I am proud that I was able to do that. I have been seeing members at my local mosque since my release, and they have been helping me through all of the issues within myself that I have had since my release. This has been a major help, as it has helped me be a part of a community I wish I was a part of when I was going through all of my substance issue problems, and has brought me a lot of peace. I also have been seeing my psychologist, and will continue to do so for the rest of my life, as this helps to bring some closure to a part of my life that I am really ashamed of.
I can assure that this offending has really opened my eyes. And I would never repeat the same things that I have done in the past.
Yours Faithfully,
Maiwand Fazal.
103The matters addressed in your letter are corroborated by references written by members of your family and your friends, as well as by reports tendered on your behalf. Your letter, however, makes no mention of the detail of your offending, and says very little about your reason for it.
Medical Treatment Letters
104A letter from Dr Bahadir Cem Demirdes of Hill Medical Services dated 14 July 2021, was tendered on your behalf.[23] It is evident from that letter that you reported suffering from symptoms of depression and anxiety in 2020 and 2021. A copy of a referral letter to Dr Al Wahab, a psychiatrist, dated 28 April 2021, notes that you apparently suffered anxiety attacks in December 2020, and in the two years or so beforehand.
[23]Exhibit 2. Also enclosed is a referral from Dr Fouad Dawood of Hill Medical Services to Dr Farazdak Al Wahab dated 28 April 2021 for psychiatric care.
105In December 2020, you presented to the Dandenong Hospital Emergency Department, reporting a sudden onset of inability to breathe or talk and feeling weak. All investigations were “normal”.[24]
[24]Exhibit 2
106A letter from Greg Troup, Clinical Psychologist, dated 28 September 2023, was also tendered on your behalf.[25] The letter confirms that you have attended three appointments with Mr Troup, for treatment under a mental health care plan. You presented with symptoms of anxiety and a history of substance misuse. You attended these three sessions to address your anxiety, as well as to focus on reducing the likelihood of returning to substance abuse. Apparently, you are still receiving treatment from Mr Troup.
[25]Exhibit 3
107These letters are silent on the question of whether there is any nexus between your mental health condition and your offending. They also make no mention of whether a period of imprisonment will be more onerous for you than for any other prisoner. There is also no evidence that any such condition will worsen if you are imprisoned. In short, the medical evidence is insufficient to engage any of the principles enunciated in Verdins.
References
108The following references were tendered on your behalf:
(a) A letter from your girlfriend’s sister-in-law, Rebecca Festini, dated 21 September 2023;[26]
(b) A letter from Bilal Amani, Principal Lawyer of Amani Lawyers, dated 25 September 2023;[27]
(c) An unsigned letter from Sal Ashkar, Managing Director of Melbourne Civil Works Pty Ltd, dated 18 September 2023, with whom you have developed a professional relationship through your business ACE Excavators & Soil Removal;[28]
(d) A letter from Josh Cosar Donma, Accountant at Taxing Moments, dated 12 September 2023, who has been managing your tax affairs;[29]
(e) A letter from your girlfriend, Dilanur Erbasi, dated 14 September 2023, who I note was also charged with handling the stolen caravan, and with perjury;[30]
(f) A letter from your mother, Roona Nida Fazal, dated 30 September 2023;[31]
(g) A letter from your grandfather, Neda Mohamad Kakar, dated 29 September 2023;[32]
(h) A letter from Aji David Madappily, Church Pastor of Cornerstone Christian Assembly, dated 26 September 2023;[33] and
(i) A letter from your family friend, Tayseer El-Hissi, dated 22 September 2023.[34]
[26]Exhibit 4
[27]Exhibit 5
[28]Exhibit 6
[29]Exhibit 7
[30]Exhibit 8
[31]Part of bundle of four letters tendered as exhibit 13
[32]Part of bundle of four letters tendered as exhibit 13
[33]Part of bundle of four letters tendered as exhibit 13
[34]Part of bundle of four letters tendered as exhibit 13
109It is apparent from these character references that you continue to enjoy the support, not only of your immediate family, but also of members of your broader community. The letters describe you as a hardworking, kind and caring person, and the people close to you believe that your offending is totally out of character. All references speak highly of you and the contribution you have made to their lives and to the community around you.
110In particular, the references disclose that you have expressed remorse for your offending, and that you have taken steps to address your underlying mental health problems and substance abuse. The letters discuss how you have benefitted from the rehabilitation program you attended at The Cottage in Shepparton. The letter written by your girlfriend notes that you even volunteered to protect the Shepparton community when the area was affected by flooding in 2022.
111The references note how your business has thrived since you were released on bail, and the extent of the hard work you have invested to make it profitable. To this end, the references confirm that you are providing emotional and financial support to your girlfriend, your mother, your father, and your grandfather, and that you have become a “father/uncle figure” for your sister-in-law’s children. It is evident that the people around you rely heavily on the support and assistance you provide them. They will be adversely affected, to various degrees, if you are imprisoned.
Participation in The Cottage
112You were granted bail on 3 June 2022. It was a condition of your bail that you participate in a residential rehabilitation program at The Cottage. The program was for 16 weeks, commencing on 28 June 2022 and ending on 18 October 2022.
113Two reports confirming your participation in the rehabilitation program at The Cottage were tendered on your behalf:
(a) A report from Maria Hutchison, Addiction Counsellor, dated 16 September 2021,[35] which was written in support of your bail application in September 2021; and
(b) A report from Aaron Gilhooley, Operations Manager, dated 7 October 2022.[36]
[35]Exhibit 10
[36]Exhibit 9
114Mr Gilhooley’s report details the nature of the programs offered at The Cottage:
The Cottage’ is located in Shepparton and offers a stable residential program for men and women. The Cottage is a privately funded not-for-profit organisation that saw a need for a life-skills residential facility within the Shepparton area. Based around a therapeutic community model, The Cottage offers a participative, group-based approach to long-term mental illness, personality disorders and drug addiction. Residents are required to abstain from alcohol and other drugs for the duration of the program. The exception will be prescribed medications, which will be secured for safe keeping. Each resident will enter into a tailored agreement with the program regarding activities and boundaries to be adhered to during their stay.
...
Each morning at The Cottage, all residents are required to attend a check-in at 8:30 am. The check-in is an opportunity to participate in 10 minutes of meditation, share honestly and openly with the community around a positive and motivational reading each day. At 11 am all residents who are on-site are required to either attend a one-and-a-half-hour education session or a one-and-a-half-hour exercise activity, as a community. During the education sessions is where The Cottage conversation material is worked through together as a group, and with a facilitator.[37]
[37]Exhibit 9, pages 1 - 2
115Ms Hutchison’s report discloses that you first used methamphetamine at age 18, and continued to do so in the 10-year period leading up to your assessment at The Cottage in September 2021. You also used cannabis and heroin in the five years prior to the date of assessment. You reported that your drug use was affecting your ability to keep your business functioning. Accordingly, Ms Hutchison opined that you met the criteria for substance use disorder as detailed in DSM-5, and therefore would benefit from a 16-week program at The Cottage.
116Mr Gilhooley’s report states:
Maiwand presented to The Cottage almost 4 months ago, showing and displaying all behavioural and mental attributes of a substance use disorder.
Maiwand entered The Cottage program with a strong desire and willingness to live a life feeling safe and responsible, without drugs and/or the crime related activities that he had been involved with. Provided with the opportunity to turn around the trajectory of his life and create a new experience for himself, with a focus of working on re-building his low self-image and self-esteem, it would appear that Maiwand has surrendered to the program on offer. It was a bit of a slow start for Maiwand, as he wouldn’t engage during class or check. After he had a bit of a scare in late July, when Maiwand returned,[38] we seen a completely different Maiwand, taking accountability for his actions and behaviours that have led him to his current situation. Addressing his guilt and shame around the risks he has taken. And ultimately making efforts to heal and address his past attitude and behaviours has been challenging, but rewarding, for Maiwand.
Maiwand has maintained and complied with all ‘Undertakings of Bail’ and all aspects and guidelines of The Cottage program. In addition to this, Maiwand has participated optionally within the therapeutic culture of The Cottage over the past 4 months, and been a genuine encouragement and advocate to and for others.
Maiwand is due to complete the 16-week program on 18 October 2022
In summary, we have been extremely pleased with Maiwand’s level of responsibility he has taken, and commitment to his recovery. Management and staff at The Cottage believe that if Maiwand continues to follow the recommended suggestions, remains close with the 12-step fellowship of NA/AA, and stays abstinent from illicit drugs and alcohol we, are confident and proud to support him as he returns to being a responsible member of society.
After the 16-week period, Maiwand will be eligible to enter into an aftercare program of on-going weekly counselling, UDS and bail monitoring with Maria Hutchison.[39]
[38]It is unclear whether the offender absconded but returned to the program. I do not count this against him given the overall positive report from Mr Gilhooley.
[39]Exhibit 9, page 4
117As mentioned, your participation in this residential treatment program was a condition of your bail. As such, you were compelled to comply with the conditions imposed by The Cottage. Even so, despite the apparent slow start referred to by Mr Gilhooley, you made the most of the opportunities offered to you while there, and this bodes well for your prospects of rehabilitation.
118Your compelled participation in the program at The Cottage is a matter I shall take into account in your favour when considering the nature and length of the sentence to be imposed, not only because it affects your prospects of rehabilitation, but also because you were effectively confined for that period as a matter of compulsion.
119As was observed in Akoka v The Queen,[40] residential treatment facilities provide offenders with the opportunity for rehabilitation. An offender’s rehabilitation serves to benefit not only the offender, but also best serves the interests of the wider community. Participation in such residential treatment facilities should be encouraged, and for those offenders who do so participate, the fact that liberty has been curtailed should be acknowledged. Although participation in such a residential program is not tantamount to pre-sentence detention, it is a factor that must be counted and reflected in the sentence imposed.[41]
[40][2017] VSCA 214
[41]Akoka v The Queen [2017] VSCA 214 particularly at paragraphs [106] – [112]
Delay
120It is now over two and one-half years since you committed the offences. There has been a period of delay between the date of the charges being laid against you and the final plea hearing. No doubt much of the delay was due to COVID-19. In the period of delay, not only have you had the stress of these proceedings hanging over your head, but in that time, you have taken steps towards your rehabilitation, to which I have already referred.
121You have also been of good behaviour in the period of delay, a matter I count in your favour, particularly on the question of your prospects for rehabilitation.
Prospects for rehabilitation
122You have limited prior convictions and court appearances. Your participation in the residential rehabilitation facility, The Cottage, and your subsequent contribution to community and family, together with the work you have invested to grow your business, all the while staying out of further trouble, enables me to find that your prospects for rehabilitation are reasonably good.
Principles of parity
123As I mentioned, your girlfriend, Dilanur Erbasi, was charged with handling the stolen caravan and with perjury. As I understand it, the perjury charge related to false information she gave to police in their investigation of your crimes.
124Ms Erbasi was dealt with in the Magistrates’ Court on 24 November 2022. She pleaded guilty to the charges and was convicted and released on a community correction order requiring her to perform 50 hours of unpaid community work.
125It is clear that your girlfriend faced many fewer charges than you, and there is reason to distinguish your offending from hers.
Sentencing submissions
126Your counsel submitted that in all the circumstances, it would be appropriate to release you on a lengthy Community Correction Order. He pointed out, correctly, that imprisonment is a sentence of last resort. He referred to the oft-cited passage from Boulton v The Queen:[42]
[131]... A community correction order may be suitable even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned community correction order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.
[42](2014) 46 VR 308
127Mr Dunn also referred to the question to which a sentencing court should direct itself:
Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantage, is the only option?[43]
[43]Boulton v The Queen (2014) 46 VR 308 at 337 [121]
128Mr Dunn submitted that you were, in effect, a victim of COVID-19, and because of that you lost your way, turning your life into “utter chaos”. You handled stolen goods, namely the caravan and the cars, hoping to sell them, although there is no evidence that you ever made any efforts to do so. He submitted that when your business failed, you turned to trafficking in drugs of dependence.
129Mr Dunn submitted, however, that you have since turned your life around, that you are remorseful for what you have done, that you have reformed, that you have spent 16 weeks in a residential rehabilitation facility, that you have strong community supports, and that your imprisonment will result in hardship to your family. According to Mr Dunn, all of these matters, together with the circumstances to which I have already referred, justify a finding that there is an appropriate alternative to imprisonment, namely release on a Community Correction Order.
130Mr Dunn referred to the sentences imposed in the cases of DPP v Bourke[44] and The Queen v Madex.[45] In both of those cases, the offenders were sentenced to terms of imprisonment, combined with a Community Correction Order. Each had served over 400 days by way of pre-sentence detention, which when declared, had the effect of the offenders being released immediately on Community Correction Orders.
[44][2020] VSC 130
[45][2020] VSC 145
131I note that in Bourke, the offender was charged with two offences: reckless conduct endangering life and being a prohibited person in possession of a firearm. There was overlap between the commission of the two offences, which occurred on the same day.
132In Madex, the offender was charged with conduct endangering life and possession of an unregistered general category handgun. After a minor domestic dispute with his daughter, the offender fired a shot in her direction. Both offences arose from a single incident.
133Those cases are distinguishable from the present case, noting the number of charges you face, the period and circumstances of offending, and the variety of offences you have committed. No two cases are alike, and I do not consider the cases of Bourke or Madex to be comparable to the offending in, or the circumstances of your case.
134On the other hand, the learned prosecutor, Ms Strugnell, submitted that the gravity and totality of your offending calls for the imposition of a term of imprisonment of such magnitude that a head sentence and a non-parole period is required. In this regard, Ms Strugnell noted that you embarked upon extremely serious offending over a period of approximately three months, at multiple locations, and during multiple incidents.
135Ms Strugnell submits that the most serious charges relate to reckless conduct endangering life and your possession of firearms. She submitted that in these circumstances the paramount sentencing considerations must be general deterrence, denunciation, and protection of the community. I agree.
136As to the shot you fired that landed in a residential apartment, Ms Strugnell submitted that it was sheer luck that no one was injured. I also agree.
137As to your possession of the firearms, Ms Strugnell noted that the firearm located in Rowville was an unregistered modified semi-automatic rifle, which was located together with ammunition. It was found next to a rodent trap in a warehouse/industrial precinct.
138The three firearms located at Docklands were not stored securely. Two of these were unregistered. Ammunition for the sawn-off shotgun and longarm were also found in your possession.
139Ms Strugnell submitted that you possessed the firearms for the purposes of criminal activity over and above that with which you are charged. She submitted that such an inference can be drawn from all the circumstances, including the admission made through your counsel, that in the period of offending you supported yourself financially through drug trafficking. She noted such an inference is supported from the following facts:
(a) You possessed a total four firearms (that is, the registered Marlin 1885 45-70 Government Lever Action rifle; a handgun being a modified FN-Browning SA-22 model semi-automatic rifle; the sawn-off 12-gauge Baikal IJ-27E model; and a modified semi-automatic .22 calibre firearm with black/brown handle and silver barrel) recovered from two locations;
(b) Three of the firearms were unregistered;
(c) One is a semi-automatic handgun;
(d) A scope was found attached to the Marlin rifle;
(e) The firearms are clearly capable of inflicting fatal injury;
(f) Your DNA was found on the trigger/trigger guard of all four firearms;
(g) You used one of the firearms by pointing it in the road rage incident. And you used another in the shooting incident at Docklands. The shattering of glass on the balustrade also supports an inference of earlier use in an uncharged act;
(h) Two of the weapons were of such dimensions that they could be concealed easily; and
(i) The search of the Docklands apartment also located two stolen motor vehicles, a significant amount of Australian currency, and 2.26 kilograms of cannabis together with methylamphetamine, which you possessed for the purposes of trafficking.
140Ms Strugnell drew attention to the principles referred to in Berichon v The Queen; Houssein v The Queen,[46] where the Court of Appeal emphasised the need to avoid double punishment where there is an overlap between firearms offences connected with the commission of other charged offences. In the present case, I am satisfied that there is no overlap with the firearms offences found in your possession that were not used in either the charge of reckless conduct endangering life, or the related summary offence of assault with a weapon. You offered no, or no satisfactory explanation for your possession of the firearms unconnected to either of those two charges. Your possession of those weapons is a matter of grave concern, particularly in the face of your admission that you trafficked in drugs of dependence to support yourself during this period.
[46](2013) 40 VR 490
Sentences to be imposed
141I take into account all of the matters personal to you to, to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you, and bear in mind the likelihood of your re‑offending.
142I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. I also take into account the delay, and rehabilitation in the period of delay.
143I have considered carefully whether the required sentencing objectives can be achieved by the imposition of a disposition other than terms of imprisonment. In all the circumstances, notwithstanding all of the matters advanced in mitigation of penalty, including the excellent progress you have made towards your rehabilitation, the period you have spent both by way of pre-sentence detention and when compelled to do so, in a residential rehabilitation facility, and the hardship that will flow to your family should a term of imprisonment be imposed, I have concluded that given the overall gravity of your offending and the significance of general deterrence and the other factors to which I have referred, I have no alternative to the imposition of terms of imprisonment.
144Turning to the charges on the Indictment:
145On Charge 3, conduct endangering life, you are convicted and sentenced to three years’ imprisonment.
146On Charge 1, handling stolen goods, namely the caravan, you are convicted and sentenced to eighteen months’ imprisonment;
147On Charge 8, rolled-up charge of handling stolen goods, namely the two cars, you are convicted and sentenced to two years’ imprisonment;
148On Charge 2, possessing unregistered handgun, you are convicted and sentenced to nine months’ imprisonment;
149On Charge 6, possessing unregistered handgun, you are convicted and sentenced to nine months’ imprisonment;
150On Charge 4, possess drug of dependence, namely 2.26 kilograms of Cannabis L, for a purpose related to trafficking, you are convicted and sentenced to eighteen months’ imprisonment;
151On Charge 7, possess drug of dependence, namely an unknown quantity of methylamphetamine, for a purpose related to trafficking, you are convicted and sentenced to 12 months’ imprisonment; and
152On Charge 5, possessing unregistered category A longarm, you are convicted and sentenced to three months’ imprisonment.
153Turning to the related summary offences:
154On Summary Charge 4, possess cartridge ammunition whilst not being the holder of a licence under the Firearms Act or a permit under s58A of the Act, you are convicted and sentenced to pay a fine in the amount of $500;
155On Summary Charge 25, possess cartridge ammunition whilst not being the holder of a licence under the Firearms Act or a permit under s58A of the Act, you are convicted and sentenced to pay a fine in the amount of $500;
156On Summary Charge 8, rolled-up charge of assault with a weapon, you are convicted and sentenced to six months’ imprisonment;
157On Summary Charge 14, deal with property suspected of being the proceeds of crime, namely $9,395, you are convicted and sentenced to three months’ imprisonment; and
158On Summary Charge 31, being a non-prohibited person in possession of a registered category B longarm, namely a Marlin 1885 Centrefire Rifle, without being the holder of a licence issued under Part 2 of the Firearms Act, you are convicted and sentenced to six months’ imprisonment.
Cumulation
159In determining whether to order any period of cumulation, and, if so, how much, I must take into account that all of these charges are discrete and were committed over four separate incidents and in differing circumstances and involved offending of such gravity that total concurrency would fail to do justice.[47] That said however, as mentioned earlier, I must be careful to avoid double punishment, where there is an overlap between your possession of firearms offending and the crimes in which you used those weapons.
[47] See R v O’Rourke [1997] 1 VR 246, at 253; and DPP v Grabovac [1998] 1 VR 664
160Taking into account all relevant factors, I consider that it is appropriate to order some period of cumulation between some of the charges on the Indictment, as well as some of the related summary charges.
161I therefore direct that nine months of the sentence imposed in respect of Charge 8 on the Indictment, and six months of each of the sentences imposed in respect of Charges 1 and 4 on the Indictment, and four months of the sentence imposed in respect of Charge 7 on the Indictment, and three months of the sentence imposed in respect of Charge 2 on the Indictment, and two months of the sentence imposed in respect of related Summary Charge 8, be served cumulatively upon the sentence imposed in respect of Charge 3 on the Indictment, the base sentence, and with each other. That results in a total effective head sentence of five years and six months’ imprisonment in respect of all offences for which you are presently before the court.
Minimum Non-Parole Period
162Although the courts have said from time to time that there is no two-thirds rule of thumb for fixing the appropriate non-parole period, a non-parole period may be assessed as unusual by comparison with other cases or having regard to the facts of the particular case.[48]
[48] See for example, Stefani v The King [2023] VSCA 183 and the authorities cited therein
163In determining the non-parole period in your case, I am required to take into account the purpose of fixing a non-parole period, which is ‘to provide for mitigation of punishment in favour of [your] rehabilitation through conditional freedom’.[49] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The relevant factors I am required to take into account are:
‘(a)That a non-parole period has a penal element;
(b) That, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c) That the prisoner’s prospects of rehabilitation are almost always a significant consideration.’[50]
[49] See DPP v Josefski (2005) 13 VR 85 paragraph [43]
[50] Josefski, paragraph [43]
164Taking all these matters into account, including your prospects of rehabilitation and the fact you have spent 16 weeks in a residential rehabilitation facility, which has impinged on your personal liberty, I direct that you serve a minimum period of three years’ imprisonment before becoming eligible for parole.
165For the sake of convenience, I attach a table of the sentences imposed as Annexure B.
Pre-sentence detention declaration
166Under s18(4) of the Sentencing Act 1991, I declare that the period of 343 is to be reckoned as a period of imprisonment already served under this sentence. And I direct that the fact of this declaration and its details be noted in the records of the court .
167As mentioned earlier, in fixing penalty, I have taken into account the 16 weeks you spent at a residential rehabilitation facility, which cannot otherwise be formally counted as pre-sentence detention under s18(4) of the Sentencing Act.
Statement under s6AAA of the Sentencing Act 1991
168By virtue of s6AAA of the Sentencing Act 1991, I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences but for your guilty plea. Therefore, pursuant to s6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea the sentence I would have imposed is as follows:
169You would have been convicted and sentenced to a total effective sentence of eight years and three months’ imprisonment. I would have directed that you serve a minimum of five and one-half years’ imprisonment before becoming eligible for parole.
170I direct pursuant to s6AAA that the sentence that would have been imposed but for the plea of guilty, be noted in the Court’s records.
Ancillary Orders
171HER HONOUR: The forfeiture orders.
172MS STRUGNELL: Yes, Your Honour, they’re – I think they were consent to on the last occasion.
173MR DUNN: They were.
174HER HONOUR: They were.
175MS STRUGNELL: I am just confirming that they have been formally made. So there should be a disposal order, forfeiture orders and a firearm forfeiture order.
176HER HONOUR: Yes. There are the orders signed. The orders are signed. Are there any further matters?
177MR DUNN: No. Thank you, Your Honour.
178MS STRUGNELL: Thank you, Your Honour.
179HER HONOUR: Please remove the prisoner. Thank you. Please adjourn the court.
---
ANNEXURE A
THE DIRECTOR OF PUBLIC PROSECUTIONS
V
Maiwand FAZAL
SUMMARY OF PROSECUTION OPENING ON THE PLEA
| Date of Document: | 23 January 2023 |
| Filed on Behalf of: | Office of Public Prosecutions |
| Prepared By: ABBEY HOGAN Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | Emma Strugnell of Counsel Madeline Kiapekos [email protected] Reference: 2102134 Telephone: (03) 9603 7666 |
Charges on Indictment
1
Summary of Prosecution Opening on the Plea
| 6. 25 June 2021 Possess unregistered General Category Handgun (homemade silver revolver) | s7B Firearms Act For a first offence, 600 penalty units or 7 years imprisonment. For a second or subsequent offence, 1200 penalty units or 10 years imprisonment. |
| 7. 25 June 2021 Possession of a drug of dependence (methylamphetamine) | s73 DPCSA Maximum 400 penalty units or to level 6 imprisonment (5 years maximum) or to both |
| 8. 25 June 2021 - Handle Stolen Goods – a 2018 Range Rover Sports registration 1MA1UD and a 2018 Mercedes C300 registration AXW208 | s88 Crimes Act Level 4 imprisonment (15 years maximum) |
The related summary offences are:
| Charge 4- 22 March 2021 Possess cartridge ammunition without a licence | s124(1) Firearms Act 40 penalty units. |
| Charge 8- 23 June 2021 unlawful assault DEMEDICI and SULTANA with a weapon, being a silver revolver handgun | s23 Summary Offences Act 15 penalty units or imprisonment for three months |
| Charge 14- 25 June 2021 deal with property suspected proceeds of crime ($9395 Australian currency) | s195 Crimes Act Level 7 imprisonment (2 years maximum) |
| Charge 25- 25 June 2021 Possess cartridge ammunition without a licence | s124(1) Firearms Act 40 penalty units. |
| Charge 31- 25 June 2021- Possess a registered Category B longarm, namely a Marlin 1895 Centrefire Rifle, without a licence | s6(2) Firearms Act 120 penalty units or 2 years imprisonment. |
Chronology
| 12 March 2021 | Discovery of Caravan, Hallam (Incident 1) |
| 22 March 2021 | Possession of Handgun, Rowville (Incident 2) |
| 1 June 2021 | Reckless Conduct Endangering Life (Incident 3)- 605/585 Latrobe Street |
| 23 June 2021 | Unlawful assault with a weapon (Incident 4)- Monash Freeway |
| 25 June 2021 | Search of Accused’s apartment and carpark, Docklands Remand of accused Filing Hearing |
2
Summary of Prosecution Opening on the Plea
| 15 July 2021 | Committal Mention Adjourned for further Committal Mention to 4 August 2021 |
| 4 August 2021 | Bail Application & Special Mention Application withdrawn Application for EOT for HUB granted to 9 September 2021. Committal Mention relisted to 7 October 2021. |
| 7 October 2021 | Committal Mention Adjourned for further Committal Mention to 21 October 2021. |
| 21 October 2021 | Committal Mention Listed for contested committal hearing. |
| 15 November 2021 | Bail Application Application refused. |
| 23 February 2022 | Committal Hearing |
| 24 March 2022 | Initial Directions Hearing Adjourned for further directions hearing for Depositions to be filed and served. |
| 18 May 2022 | Directions Hearing Adjourned for further directions hearing as Depositions not yet completed. |
| 3 June 2022 | Bail application: bail granted |
| 6 June 2022 | Directions Hearing Adjourned for further directions hearing to 6 September 2022 |
| 6 September 2022 | Directions Hearing Adjourned for further directions hearing for ongoing resolution discussions. |
| 18 October 2022 | Application to vary bail Granted administratively. |
| 20 October 2022 | Directions Hearing Adjourned administratively to 25 November 2022 |
| 25 November 2022 | Directions Hearing Adjourned administratively to 1 December 2022 |
| 1 December 2022 | Directions Hearing Matter resolved. Arraignment listed on 30 January 2023 |
| 30 January 2023 | Arraignment |
| 14 April 2023 | Plea Date; Melbourne County Court |
3
Summary of Prosecution Opening on the Plea
Background
1. The accused Maiwand FAZAL (‘FAZAL’) is a 28-year-old male born on 30 May 1993.
2. At the time of the offending, he was residing in a one-bedroom apartment located at 241 Harbour Esplanade, Docklands.
3. FAZAL was not licenced or permitted to carry, possess or use a firearm in accordance with the Firearms Act 1996 (Vic). He was not subject to a Firearms Prohibition Order.
4. At the time of the offending, FAZAL was in a relationship with Dilanur ERBASI
(‘ERBASI’).
Incident 1
5. On 18 January 2021 a commercial premises at 1/10 Hi-Tech Place in Rowville was inspected by a male who identified himself as Michael BASRAT and a female who identified herself as ERBASI. The property is managed by Real Estate Agent Antoinette MITCHELL of Red Property Specialists.
6. On this day, the male filled out a rental application, supplying a Victorian Driver’s Licence in the name of Michael BASRAT and phone number 0413 672 793. The male stated he was wanting to pay 6 months’ rent upfront.
7. Whilst conducting an inspection of the premises, Antoinette MITCHELL obtained a photograph of the accused within the premises.
8. A lease agreement was signed by Michael Basrat and Abdul Rahmani, and the signatures witnessed by Dilanur Erbasi (signed “ERBAS” in block letters).1
9. On 17 February 2021, MITCHELL was informed at the property had been broken into and a 2012 Jayco White Star Caravan Registration V03084 stolen from inside the property.
10. On 17 February 2021, MITCHELL and the property owner, David BROMLEY, attended the property and observed damage to the front glass door, with the roller door left open.2
11. The lease handover occurred on 19 February 2021; at which time the accused was driving a 2016 Porsche 911 couple bearing registration plates AZX102.
12. On 12 March 2021 at 9.00am another real estate agent, Heide RADLE, attended a commercial premises leased to the accused FAZAL at 39 Colrado Court in Hallam. The attendance was for the purposes of repossession.
13. Upon attending the address, RADLE spoke to a male who identified himself as Zelmai FAZAL, the father of the accused, and explained the reason for her attendance.
14. At the time of her attendance, RADLE observed the roller door to the factory to be open, and a saw a Jayco Caravan bearing registration plates V03084 within the property.
15. Police were notified, attended, and confirmed the caravan to be stolen. (Charge 1 –
Handle Stolen Goods)
1 Statement Antoinette Mitchell.
2 Statement of Antoinette Mitchell; Statement of David Bromley.
4
Summary of Prosecution Opening on the Plea
Incident 2- 22 March 2021
16. On 22 March 2021 DSC Kevin MORGAN and DSC Sharon DOW attended 1/10 Hi-Tech Place, Rowville and located the accused FAZAL and a Toyota Dual Cab Ute outside the premises. They departed the area at approximately 11.40am.
17. A short time later, at 11.50am, DSC Kevin MORGAN and DSC Sharon DOW attended the Factory outside number 7/10 Hi Tech Place, Rowville, being ‘Rowville Brake and Clutch.’
18. Witness DI MARIA informed the Detectives that he had located a bag outside the factory next to a pest control box, which he had opened and located an object which he believed was a firearm.
19. Detectives were taken to the location of the black bag, being a black ‘Armani Exchange’ shoulder satchel bag, where they located:
a. Modified semi-auto 22 calibre firearm with black/brown handle and silver barrel (Charge 2- Possessing an unregistered general category handgun)
b. 1x 22 calibre ammunition round (Related summary offence 4- possession of cartridge ammunition without a licence)
c. $259.55 in AUD cash
d. Keyring with assorted keys and black/blue fob
20. LSC Ashley HOLMS photographed all exhibits within the bag and obtained a trace DNA swab from the handle of the firearm.
21. At approximately 12.30pm a Toyota Hilux dual cab utility bearing registration plates BEG198 attended the car park, where a male exited the vehicle and was identified as Zelmai FAZAL, the father of the accused.
22. Zelmai FAZAL had a conversation with DSC MORGAN in which he stated that he had attended to collect a “black man handbag” for his son, Maiwand FAZAL (the accused).
Incident 3- 1 June 2021
23. On 1St June 2021 at 8.45pm the victim Juan SALGADO was seated at the dining room table within his apartment at 601/585 Latrobe Street, Melbourne, using his laptop.
24. 585 Latrobe Street is situated on the corner of Spencer and Latrobe Streets, directly opposite Victoria Police Headquarters and Victoria Police Crime Command department.
25. A firearm projectile entered though a west-facing window, striking the kitchen sink tap and microwave, before landing and coming to rest on the floor of the apartment. (Charge 3- Conduct Endangering Life)
26. The matter was reported to 000 by SALGADO.3
3 Statement of Juan Salgado.
5
Summary of Prosecution Opening on the Plea
27. A crime scene was established, with the Victoria Police Forensic Science Centre (Ballistics) attending and conducting an examination of the scene. The examination revealed:
a. Damage to the kitchen window glass and roller blind, the shape being consistent with a firearm projectile
b. A firearm projectile on the floor of the apartment.
28. Ballistics expert RUIZ4 was able to determine that
a. the bullet was fired from a fixed location above the level of the apartment 605/585 Latrobe Street
b. the only fixed locations which aligned with the bullet’s trajectory were two skyrise residential buildings which were 750 metres away
c. the bullet fired was a .45 calibre round, discharged in a firearm with six land and groove marks with a right-hand twist in the bore. It's weight and design, in conjunction with its rifling characteristics, suggested it had originated from a .47-70 government calibre cartridge.
Incident 4- 23 June 2021
29. On 23 June 2021 at approximately 3.30pm the victims, Lucas DEMEDICI and Bradley SULTANA were travelling in their work truck eastbound (outbound) on the Monash Freeway. Victim SULTANA was driving the vehicle whilst victim DEMEDICI was seated in the front passenger seat of the vehicle.
30. As they approached the Warragul Road exit, they were cut off by a matte dark grey coloured Maserati. The Maserati was described as having badges on the front however being de-badged on the rear, and with a dent in the front right quarter panel above the front right wheel. The Maserati was bearing registration plates BDB228.
31. The accused was driving the vehicle and was its single occupant. The accused was wearing a white baseball cap and had a dark jacket or hoodie. He was estimated to be around 25 to 35 years of age and appeared of Lebanese descent.5
32. After they were cut off, SULTANA activated the truck’s horn and SULTANA and DEMEDICI threw their hands up in frustration. In response the accused slowed the Maserati slowed down and changed lanes so that the Maserati was parallel to the passenger side of the truck.
33. The accused, seated in the driver’s seat of the vehicle, then produced a firearm which the victims describe as a small silver revolver that the accused held in his left hand, pointing it the victims. The accused then said, “What did you say, cunt?”
34. The victims then slowed down so that they were no longer parallel next to the vehicle before continuing outbound on the Monash Freeway, while the Maserati came to a stop in the emergency lane. The accused was observed exiting the vehicle
4 Statement LSC Ruiz.
5 Statement of Demedici.
6
Summary of Prosecution Opening on the Plea
and was attempting to close the boot. Both victims contacted 000 before contacting Glen Waverley Police Station to report the incident. (Related Summary Offence 8 - Unlawful Assault with a weapon, being a silver revolver handgun)
Investigation
35. On 3 June 2021, Investigators attended 241 Harbour Esplanade in Docklands to obtain a statement from a witness Matthew CARLAND, which outlined that he was present at his apartment on 1 June 2021 when he heard a loud bang. Witness CARLAND stated that he believed the loud bang was consistent with a gunshot, a ‘crisp’ sound that appeared to have originated above him.6
36. On 3 June 2021 investigators observed the accused on the ground level foyer at 5.55pm, awaiting a north tower lift.
37. Investigators from the Armed Crime Squad conducted enquiries with ‘The Quays’ building management at 231-241 Harbour Esplanade, Docklands, and obtained the following information:
a. The accused was residing in apartment 2104, with a short term lease agreement between the owner and Dilanur ERBASI, which commenced on 29 January 2021
b. Apartment 2104 is situated in the North Building, identified as 241 Harbour Esplanade, Docklands
c. Apartments 3, 4, 5, and 6 on each respective floor has a clear vision to the incident location at 585 Latrobe Street
d. Residents utilizing the lifts are required to swipe building access cards to attend the specific floors in which their buildings are located.
e. Apartment 2104 is assigned access cards 7033 and 7034.
38. Armed Crime Squad Investigators obtained CCTV footage from The Quays building management in relation to the North Tower situated at 241 Harbour Esplanade, Docklands.
39. On 1 June 2021, CCTV footage depicts the following:
a. At 9.19pm North Tower Lift 2 leaves the ground level, arriving on level 4, with the accused entering the lift with multiple shipping bags, The accused exits the lift on level 21.
b. At 7.48pm the accused enters North Tower Lift 1 from level 21 and exits on the ground floor
c. At 8.08 the accused exits the building via the North Access door with an unidentified male. Both the accused and the unidentified male begin smoking a cigarette before the male departing a short time later.
6 Statement of Matthew Carland.
7
Summary of Prosecution Opening on the Plea
d. At 8.13pm thee accuse enters North Tower Lift 1 from the ground floor with 2 males, identified as Atiqullah BABAK and Milad CHATRARY and exit on level 21
e. At 10.33pm the accused, BABAK and CHATRARY enter the North Tower Lift 1 from level 21 and exit on level 4.
f. At approximately 10.35 pm the accused, BABAK and CHATRARY enter the North Tower lift 1 from level 4 and exit on the ground floor.
40. Swipe card records confirm these movements.
41. CCTV from The Quays depicts the following on 23 June 2021:
a. At 2.59pm CCTV depicts thee accused leaving his address in his 2019 Maserati Ghibli bearing reregistration BDB228. He is the sole occupant of the vehicle
b. The Maserati is depicted as dark grey in colour in matte finish
c. At 5.12 pm the accused is depicted returning to the carpark in the Maserati Ghibli BDB228. He is the sole occupant of the vehicle.
d. Telstra call charge records for the mobile phone number 0483 392 575 belonging to the accused for the period 2.59pm-5.12pm indicate the mobile phone is connected to cell phone tower locations along the Monash Freeway outbound, and in the vicinity of Chadstone at the time of the road rage incident involving victims SULTANA and DEMEDICI.
Handle Stolen Goods
42. On 24 June 2021, whilst conducting surveillance of 241 Harbour Esplanade in Docklands, Armed Crime Investigators identified two stolen vehicles parked in close proximity to the accused’s vehicles within the car park. These vehicles are a 2018 Range Rover Sport wagon Registration 1MA1UD valued at $70,000 and a 2018 Mercedes C300 sedan Registration AWX208 valued at $60,000. (Charge 8- Handle stolen goods )
Execution of Search Warrant
43. On 25 June 2021 Investigators from the Armed Crime Squad together with the assistance of operatives from the Victoria Police Special Operations Group executed search warrants pursuant to s146 of the Firearms Act and s 465 of the Crimes Act at apartment 2104/241 Harbour Esplanade in Docklands.
44. At the time of search warrant execution, Special Operations Group operatives forced entry to the apartment, providing instructions for the accused to exit the apartment. The accused stated he would surrender after having a shower. After a prolonged period of disregarding instruction, the accused presented within the apartment. Special Operations Group operatives moved forward to secure the accused, but the accused refused to show his hands and resisted arrest.
8
Summary of Prosecution Opening on the Plea
45. A search of the apartment revealed the apartment to be a one bedroom one bathroom apartment. The accused was the sole occupant. The following items were located and seized:
a. a silver apple iPhone in the toilet bowel
b. a Mercedes vehicle key within a vase on the dining table (belonging to vehicle AXW208) (Charge 8- Handle stolen goods)
c. a Range Rover key within a vase on the dining table (belonging to vehicle 1MA1UD) (Charge 8- Handle stolen goods)
d. $435 in cash within vase on the dining table
e. A set of keys with FOB access token on the dining table
f. A black apple iPhone in a black wallet case on a coffee table within the loungeroom
g. Miscellaneous cards in the name of the accused within the black phone wallet case
h. Business card in the name of Antoinette MITCHELL of Red Property Specialist
i. Lage multi-coloured nylon bag containing vacuum sealed bags of cannabis
j. 1 round .45 calibre ammunition casing (spent) within ‘Gucci’ suitcase
k. Black bag containing firearms within storage cupboard in the lounge/dining area
i. Marlin 1885 45-70 Government Lever Action rifle within black bag (Related Summary Offence 31- possession of a registered category B longarm)
ii. Sawn off over/under shotgun within black bag (Charge 5 Possessing an unregistered category A longarm)
l. 1 box of Winchester Super X 12-gauge shotgun cartridges
m. 1 Box Remington 45-70 ammunition rounds
n. Black plastic clip case containing handgun and ammunition in the storage cupboard in the lounge/dining area
i. Zip lock bag containing 4 shotgun cartridges and 2 spent .45 calibre rounds
ii. Homemade silver revolver containing 2 live and 3 spent ammunition rounds (Charge 6- Possessing an unregistered general category handgun)
iii. 2 x boxes of CCI brand .22 calibre ammunition rounds
o. Black ‘Tommy Hilfiger’ satchel on the TV cabinet in the lounge area
p. Plastic zip lock bag containing methylamphetamine in a drawer of the TV cabinet7 – (Charge 7- Possession of a drug of dependence)
q. A combination safe within the wardrobe of the bedroom containing
i. $8960 in AUD cash
7 No drug analysis (testing for weight/purity) was conducted on the methylamphetamine due to the resolution of this matter prior to trial.
9
Summary of Prosecution Opening on the Plea
ii. Multiple identification cards/documents in various names
iii. Victorian Drivers Licence in the name of Michael BASRAT
iv. Australian passport in the name of the accused
r. Maserati Ghibli sedan bearing registration plates BDB228 in the car park.
s. 2016 Porsche 911 couple bearing registration plates AZX102 in the car park.
46. The total weight of the cannabis located within the apartment is 2.26kg of cannabis
L.8 (Charge 4- Possession of a drug of dependence)
47. The total quantity of Australian currency is $9395 (related summary offence 14- deal with property suspected proceeds of crime)
48. The various cartridge ammunition seized forms part of related summary offence 25- possession of cartridge ammunition without a licence.
49. Whilst conducting a search of the premises, investigators observed damage to the balcony glass (splintering) and aluminium framed balustrade (indentation and scratching). As a result, a ballistic and tool mark examiner from the Victoria Police Forensic Science Centre attended, conducting an examination of the damage.
50. Ballistics confirmed that the damage to the aluminium balustrade was caused by a fired bullet.
Biological Analysis of Firearms
51. The Firearms seized throughout the investigation were examined by Peter Bell from the Victoria Police Biological Sciences Group.9 A Summary of the Biological Results is as follows:
BIOLOGY ANALYSIS Item Exhibit Area Sampled DNA Comparison Result Semi-Automatic handgun 20 Trigger/Trigger Guard FAZAL (LR= 100 Billion) Area at end of barrel FAZAL (LR= 100 Billion) Swab labelled 'HANDGUN' 26 Swabbed from handle FAZAL (LR= 100 Billion) Marlin Rifle 50 Trigger/Trigger Guard FAZAL (LR= 100 Billion) Stock/Grip FAZAL (LR= 100 Billion) Over/Under shotgun 52 Trigger/Trigger Guard FAZAL (LR= 100 Billion) Stock/Grip FAZAL (LR= 2) Silver Revolver Handgun 58 Trigger/Trigger Guard FAZAL (LR= 100 Billion) Hammer FAZAL (LR= 100 Billion)
Ballistics analysis
52. Examination of the firearms and ammunition seized throughout the course of the investigation revealed:
a. The firearm sized on 22 March 2021 (Rowville) was a modified FN-Browning SA-22 model semi-automatic rifle modified to meet the definition of a handgun.
8 Statement of Emily Sowter, Victoria Police Forensic Botanist.
9 Statement Peter Bell, Biology Analyst.
10
Summary of Prosecution Opening on the Plea
b. The Marlin 1885 45-70 Calibre lever action rifle was capable of discharge. The Marlin is a category B longarm.
c. A Tesco brand telescopic sight was also attached to the receiver of the Marlin, which had a range between 2 to 7 magnifications. The scope was tested for accuracy with this rifle at a distance of 34 metres and it was observed to impact its target approximately 15 centimetres left from the point of aim.
d. The sawn off over under shotgun was identified as a 12-gauge Baikal IJ-27E model, and was capable of discharge
e. The box labelled Winchester Super X contained 25 ammunition rounds which were suitable for use in the sawn-off shotgun
f. The box labelled Remington 45-70 contained 116 cartridges and 1 fired cartridge, which were suitable for use within the Marlin 45-70 calibre lever action rifle
g. The fired ammunition cartridges located with the accused’s apartment was fired using the Marlin 45-70 calibre lever action rifle
h. The firearm projectile recovered from 601/585 Latrobe Street was discharged from the Marlin 45-70 calibre lever action rifle.
i. Review of the notes taken by LSC BREER pertaining to the address of 2104/241 harbour Esplanade Docklands indicated that its balcony was in the line-of-sight of 601/585 Latrobe St Melbourne.
j. The fired bullet ricochet mark evident on the balustrade related to a separately fired bullet discharged towards the rear facade with the Victorian Police Headquarters at 313 Spencer St Melbourne.10
Record of Interview
53. A DVD Record of Interview was conducted between the accused and DSC Luke MASON and DSC Jason ZAHRA at the Melbourne West Police Complex on 25 June 2021.
54. When asked about his involvement in the road rage incident and subsequent threats with a firearm on the 23rd of June 2021 the accused stated, “why are you just saying it was me? on what evidence… is there a recording of the like, seeing me do it?”
Victim Impact Statements
55. Victim impact statements will be filed in advance of the plea should they be received.
10 Statement of LSC Ruiz.
11
Summary of Prosecution Opening on the Plea
Prior Criminal History
56. The accused has prior criminal history as attached.
Pre-sentence detention s18
57. The accused has available 344 days of pre-sentence detention.
Orders in addition to sentence
58. The following orders will be sought:
·Forfeiture Firearm Order;
·Disposal Orders;
·Forfeiture Orders; and
·6AAA Declaration.
Emma Strugnell
Counsel for the Prosecution
12
Summary of Prosecution Opening on the Plea
ANNEXURE B
| Charge | Offence | Maximum | Sentence | Cumulation |
| 3 | Reckless conduct endangering life | 10 years | 3 years | BASE |
| 1 | Handle stolen goods | 15 years | 18 months | 6 months |
| 8 | Handle stolen goods (rolled up charge) | 15 years | 2 years | 9 months |
| 2 | Possess unregistered handgun | 600 penalty units or 7 years | 9 months | 3 months |
| 6 | Possess unregistered handgun | 600 penalty units or 7 years | 9 months | |
| 4 | Possess drug of dependence (2.26 kg cannabis L) for trafficking purpose | 5 years | 18 months | 6 months |
| 7 | Possess drug of dependence (methylamphetamine) for trafficking purpose | 5 years | 12 months | 4 months |
| 5 | Possess unregistered category A longarm | 120 penalty units or 2 years | 3 months | |
| Related summary offence (RSO) 4 | Possess cartridge ammunition | 40 penalty units | Fined $500 | |
| RSO 25 | Possess cartridge ammunition | 40 penalty units | Fined $500 | |
| RSO 8 | Assault with weapon | 2 years | 6 months | 2 months |
| RSO 14 | Deal with property suspected of being proceeds of crime | 2 years | 3 months | |
| RSO 31 | Non-prohibited person in possession of category B longarm | 2 years | 6 months | |
| Total effective sentence: 5 and one-half years’ imprisonment | ||||
| Non parole period: 3 years | ||||
| Pre-sentence detention declaration: 343 days | ||||
| Total fines: $1,000.00 | ||||
| Section 6AAA statement: 8 years and 3 months’ imprisonment with a non-parole period of 5 and one-half years | ||||
16
0