Director of Public Prosecutions v Guest
[2020] VSC 352
•22 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL LAW DIVISION
S ECR 2019 0102
S ECR 2019 0144
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN GUEST |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 May 2020 |
DATE OF SENTENCE: | 22 June 2020 |
CASE MAY BE CITED AS: | DPP v Guest |
MEDIUM NEUTRAL CITATION: | [2020] VSC 352 |
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CRIMINAL LAW – Sentencing – Attempted murder – Prohibited person possessing a firearm – Context of dispute about manufacture of amphetamines – Plea of Guilty – Remorse – Forgiveness by victim – Good prospects for rehabilitation – Total effective term of 11 years imprisonment with non-parole period of 7 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Jeremy McWilliams | Office of Public Prosecutions |
| For the Accused | James McQuillan | Victoria Legal Aid |
HER HONOUR:
Dean Guest, on 4 October 2019, you pleaded guilty to offences that occurred in Castlemaine, Victoria on 26 May 2017. Charge 1 alleges that you attempted to murder Mark Handler.[1] The maximum penalty for attempted murder is 25 years imprisonment. Charge 2 relates to possession of the firearm whilst being a prohibited person.[2] This was the firearm that you used at the time of the conduct forming Charge 1. The maximum sentence for this offence is ten years imprisonment
[1]Pursuant to s 321M of the Crimes Act 1958 and the common law.
[2] Pursuant to s 5(1) of the Firearms Act 1996 (Vic): A prohibited person must not use of carry a firearm.
A Summary of Prosecution Opening was read aloud and tendered at your plea hearing.[3]
[3]Exhibit 3.
I will describe the background facts founding the charges.
On 26 April 2017, you went to Mark Handler’s home, at 6 McGregor Street, Castlemaine. He is a disability pensioner, but he is also a qualified biochemist, and holds a Bachelor of Applied Chemistry and a PhD in Materials Engineering.
Mark Handler did not know you at the time you first visited but was waiting for a friend to arrive. Handler had fallen behind with his rent and was expecting Greg Wilson to attend and drive him to a VCAT[4] hearing. When you were at the door Handler saw that you were carrying a handgun in your jacket. He inquired whether Wilson was there. He had reservations about letting you into the house but allowed you inside as he got ready to leave.
[4]Victorian Civil and Administrative Tribunal
Handler told you he was going to VCAT because he was facing eviction over $6,100 in unpaid rent. You offered a solution, suggesting you would give him the equivalent of the outstanding rent money, if he would manufacture methyl-amphetamine for you.
Handler agreed to your proposition, and you left to go and get the money, returning a short time later with $6,100 in cash. You gave him the cash in accordance with your proposal. The exact amount of methyl-amphetamine to be produced was not defined, but it was to be ‘a lot’.
Greg Wilson arrived soon afterwards and waited with you at the McGregor Street premises whilst Handler went to pay his rent.
When Handler returned, he was told that a further $4,500 would be provided by you to Wilson, in exchange for Handler producing a total of $10,600 worth of methyl-amphetamine to cover the sums advanced to both Handler and Wilson. The methyl-amphetamine was to be produced in about one week’s time. If Handler could not produce the substance, then the money advanced by you was to be returned.
Over the next four weeks, Handler appeared to be putting off completing the production of the methyl-amphetamine. You became increasingly agitated. You telephoned frequently and went to Handler’s house every few days to check on his progress. Each time that you visited, you carried a handgun with you.
On the 18 May 2017, you contacted Handler via telephone and threatened him. On 21 and 22 May 2017, you sent threatening text messages to him. At that time, police were monitoring the telephone service of Handler.
It is not necessary to recite the content of the text messages you sent, but you made many threats, including threats to kill or cause serious injury to Handler, accusing him of disrespecting you, and breaking his promises.
At approximately 10.00am on 26 May 2017, you arrived at the McGregor Street premises, primed to confront Handler and Wilson. You accused Handler of ripping you off. You left a short time later.
At 2.20pm on the same day you returned, armed with a Ruger .22 calibre semi-automatic handgun. You entered the house via the back door.
Mark Handler was in the living room when you entered. You approached him, put your arm around his head, and fired a single round into his head just below his left ear. Handler fell to the floor. He was bleeding profusely from the wound to his head.
You left him in that perilous condition and returned to your car and drove off. Fortunately, Handler was able to telephone and summon help from Wilson. Wilson arrived and drove Handler to Castlemaine Hospital for urgent treatment. Handler was airlifted to the Royal Melbourne Hospital, where a bullet was surgically removed from the right side of his head. Ultimately, he recovered reasonably well from the shooting.
After the shooting you fled Victoria, choosing a rather circuitous route. You drove to Albury, New South Wales and then to Western Australia. You were located by police on 30 May 2017, resting in the rear tray of your utility that was parked by the side of the highway, near Ravensthorpe, Western Australia. You were arrested and taken into custody. You were charged by West Australian Police with possession of two guns that were found with you when you were arrested, along with possession of ammunition. You still had the Ruger handgun in your possession, and you also had a sawn-off shotgun. The Ruger handgun was loaded, and ammunition was also found with that weapon. I was told by your counsel that you were sentenced to 12 months' imprisonment for possession of the firearms found with you at the time of your arrest.[5]
[5]A document containing Western Australian convictions was provided by the prosecution. It shows that on 27 November 2017, a sentence of 12 months was imposed for three charges dealt with at Albany District Court: two charges of ‘possess an unlicensed firearm and prohibited drug’, and one charge of ‘unlicensed person possess firearm/ammunition’. The offence date is stated as 30 May 2017. Some other outstanding offences referred to in the document were dealt with after the offences before the court.
When the Ruger handgun was later examined for Victorian Police, biological material linked to Handler was detected inside the barrel of the gun. The bullet removed from Handler’s head was compared with a bullet that was test fired from the Ruger handgun, and showed the strong likelihood, that the bullet in Handler’s head came from that gun. The prosecution case against you was strong.
The medical consequences of the shooting for Handler were that he suffered a right zygomatic fracture, mid facial fracture and left occipital fracture, requiring complex surgical repair. He remained in hospital until 30 May 2017. It need hardly be said that he was fortunate to have escaped with his life.
Mark Handler’s victim impact statement[6] was read aloud by the prosecutor at his request. He described his understanding of the complexity of the surgical removal of the bullet from his right cheek bone and the surprisingly good outcome from surgery. He said: ‘It’s good a positive memory was made from all this.’
The swelling through my left-hand jaw line post trauma pinched and damaged the nerve running along it and I now have reduced nerve function on the left-hand side inner lower jaw and on the left-hand side of my tongue. Nerve damage exhibits as generalised numbness interspersed periodically with hypersensitivity. If I’m tired and trying to eat I’ll often bite my tongue accidentally. Additionally, my ears no longer pressure equilibrate on their own. As such, over any given 30-minute period the pressure builds and I become increasing (sic) deaf until I remember to pop my ears. There is medication for this. That’s it… A numb tongue and a tendency towards deafness that runs in thirty minute cycles.
[6]Ex 2: Victim Impact Statement declared 12 May 2020.
Handler explained that the emotional impacts were more difficult to explain, as he had previously been diagnosed with severe depression that had proven difficult to treat. He said: ‘as seductive as it is to lay all my problems at the feet of my attempted murdering it would be disingenuous in the extreme to do so. I was not menaced on the day of the shooting, nor was I threatened or cajoled… I was completely unaware of what was about to transpire…’
He did, however, refer to some societal impacts, stating that he had seen an ugly, albeit understandable prejudice exhibited towards him from his closest friends, through to newer friends who learned about the shooting.
He said, somewhat unusually, that he held no ill will towards you, realising you have children and grandchildren, and stating that he hoped you could find some meaning in your life.
Mark Handler’s description of the impact of your crime allows the Court to find that the effects experienced by him are less severe than might otherwise have been anticipated from a gunshot wound to the head. The Court acknowledges, his considerable restraint in describing his subjective experience of what was done to him. His apparent forgiveness, or disavowal of any interest in retribution, allows the court to approach the sentencing of you in a more favourable light for the reasons explained by the Court of Appeal in R v Skura.[7] Of course, that involves keeping in mind that ‘sentencing is not the function of the victims of crime, but of the state, through the judiciary’.
[7][2004] VSCA 53 [48]; also Ivanov v The Queen [2019] VSCA 219 [98]–[101].
The procedural history leading up to your plea may be shortly stated. After serving the 12-month sentence in Western Australia for possession of the two firearms that you had with you when you were arrested, you were extradited to Victoria on 30 May 2018. A record of interview regarding the shooting of Handler was conducted by Victorian detectives on 28 June 2018. A contested committal took place in April 2019, and you were committed for trial to this Court on 24 April 2019. On 23 September 2019 your lawyers indicated your intention to plead guilty to the current charges.
As mentioned earlier, you entered your pleas on 4 October 2019. Although not an early plea, your pleas of guilty have significant utilitarian value.
I now turn to discuss your criminal history. This includes firearm and drug related offences. Whilst there are convictions for assault, they were many years ago.
Your first sentence of imprisonment was for assault police/person assisting police, unlawful assault, and escape from lawful custody. A sentence of two months was imposed by the Castlemaine Magistrates’ Court on 19 June 1986 and you served that sentence at Pentridge Prison.
You were then dealt with in Western Australia, for carrying an offensive weapon, and there were then some driving offences and minor summary offences between 1988 and 1995.
On 3 October 1988, there was also a conviction and a fine for cultivating cannabis, dealt with at the Perth Court of Petty Sessions. You next appeared at Perth Court of Petty Sessions on 4 July 2000 for drug and firearm offences.[8]
[8]12 months' imprisonment was imposed for possession of a prohibited drug, possess unlicensed firearm/ammunition, cultivate cannabis with intent to sell or supply and possess cannabis with intent to sell or supply.
Four years later you were dealt with at the Perth District Court for possess amphetamine with intent. I was told by your counsel that the amount involved was 81 grams and the offence involved intent to sell. A sentence of five years and four months imprisonment was imposed.
You also appeared at Castlemaine Magistrates’ Court on 5 July 2006 for recklessly cause injury and unlawful assault and received a sentence of 21 days.[9] The only other offence of note was a charge of possess controlled weapon at the Broome Magistrates’ Court on 25 June 2014 for which you were fined.
[9]The Court was told that this related to ‘an all in brawl at a pub’.
You are now 53 years of age, and you are an experienced stonemason.
You did not have an easy childhood and lacked a male role model. Your mother separated from your father soon after you were born, and then married your stepfather when you were aged 5. You have an older brother who shares the same biological father as you, and there are younger siblings from the union of your mother and stepfather.
There were two significant problems that hampered your upbringing. It appears likely that you suffered from undiagnosed Attention Deficit Hyperactivity Disorder (ADHD). Also, you did not get along with your stepfather. You were unable to settle into primary school in Campbellfield and were often in trouble. You were easily distracted and struggled academically. At home, your stepfather was violent towards you, and after he and your mother had their own children, you felt you were not wanted.
Your family moved to Castlemaine, and your mother and stepfather began to manage a milk bar around the time you commenced secondary school. Your schooling at Castlemaine Technical School was short lived, and you found it difficult to adjust to life in Castlemaine.
At 14 years of age, it became obvious to you, that your stepfather wanted you out of the house, and you were forced to leave home at that time. You learned to fend for yourself and obtained work at a service station in Moreland for 18 months, before working at a gold mine in Chewton, at local abattoirs and on re-stumping houses.
You were sent to Pentridge Prison for a short sentence at the age of 19. Your biological father came to visit you there, and you found some solace, building a connection with him at that time. Your father had been living in Western Australia, and when you were released from Pentridge Prison, you relocated to Western Australia to be with him. You lived in Western Australia, on and off, for nearly 30 years. You worked in the mines and developed several skills.
In your early thirties when you were back in Victoria for a while, you undertook a stonemasonry apprenticeship with your brother Glenn Guest. He provided a letter to the Court,[10] in which he says that you became a skilled stonemason working for him and working at another local stonemasonry business. He described you as also being talented in building renovation and landscaping. Robert Bertoni supplied a reference in which he also spoke of your talent as a stonemason and other good qualities you have.[11]
[10]Part of Defence Exhibit E.
[11]Part of Defence Exhibit E.
Therefore, it seems that despite your involvement in illicit drugs over the years, you have maintained good employment. You are well regarded as a worker in different domains.
In 2015, you bought some land on Campbell’s Island, New South Wales, which is an island on the Murray River. You were living there at the time of the offences before the Court.
Psychologist, Carla Lechner, assessed you in anticipation of your plea hearing. She prepared two reports[12] for the Court. She revealed details of your family life including that you had a relationship with Roxanne that produced a son Billy, who at the time of Carla Lechner’s first report was 28. You had a further relationship with Melissa, producing a daughter, Ellie-May, now aged 22. You now have three grandchildren. You are on amicable terms with your former partners and your daughter.
[12]Defence Exhibit B: Carla Lechner report 14 December 2019; Carla Lechner report 6 February 2020.
You maintain a close relationship with your mother, your older brother and your younger sister and they each supplied supportive references for your plea hearing.[13]
[13]Margaret Guest 31 January 2020; Glenn Guest 21 January 2020; Sharelle Guest 31 January 2020. (Part of Defence Exhibit E).
Tragically, your son Billy was murdered in Geelong in December 2019, when you were already in custody for the current offences. Billy had a son of his own, and you are determined to fulfil a role in your grandson’s life when you are released.
Carla Lechner assessed you, both before and after the murder of Billy, and observed that your state of mind had deteriorated by the time of her second report.[14]
[14]Lechner report 6 February 2020 [1] under Summary and Opinion.
It is apparent from her reports, that you are remorseful for what you did to Mark Handler, and you accept that you should be punished for your actions. In accepting Ms Lechner’s assessment about this, I note that it was not until after you indicated that you would plead guilty to the charges, that evidence of remorse emerged.
Significantly, whilst on remand, you appear to have made a connection between the death of your son, and the futility of the criminal world that you have been inhabiting. This has led you to reflect on your actions towards Mark Handler. You told Ms Lechner that you felt even more guilty for what you did to Handler and wondered if your son’s death was ‘some kind of karma’ for your own actions. You appear keen to remove yourself from the criminal world in the future.
Ms Lechner diagnosed you as suffering from a Major Depressive Disorder[15] connected to the grief you experienced over the murder of your son. The fact that you are unable to be with your grandson at his time of loss, has added to your feelings of helplessness and depression.
[15]Lechner report 6 February 2020 [2]–[4] (applying DSM 5).
You have also been afflicted by unresolved grief and self-blame, relating to the suicide of your father in 2012.
You told Ms Lechner that you had used amphetamine related substances for most of your adult life. You explained that these substances, helped you to feel normal, focused and able to achieve your goals. She opined that drug use may have acted in a paradoxical way to ease your ADHD symptoms.
Nevertheless, you acknowledged to Ms Lechner that drug use had undermined your intimate relationships.
I surmise that your involvement with criminal associations in the drug world, has led to you resorting to very serious offending, at an age when you are already a grandfather. That is a sorry situation.
Turning to the objective circumstances of your offending, I am not persuaded by your counsel that your offending is a mid-range example of the offence of attempted murder. I do, however, accept that some circumstances of aggravation found in other cases, are not present in your case. In some cases, a high degree of planning is revealed; there may be evidence of plans to dig a grave or set fire to a body or a crime scene, in advance of the crime. The offending may be part of a larger criminal episode involving ongoing abuse and mistreatment. It may be the culmination of family violence, involving aspects of breach of trust. In some cases, severe and permanently disabling injuries occur. None of these features are present in your case: whilst a serious injury was inflicted to Mark Handler, he recovered quite well in the circumstances.
Although you claim to have been under the influence of amphetamines at the time of the shooting, your actions were premeditated. You made a series of violent threats and believed that the bargain you had made with Handler was not being fulfilled. When your threats did not bring about the outcome you wanted, you made your way into Handler’s home, sought him out in anger, and chose to fire a loaded gun at close range into his head.
The drug milieu in which the shooting took place, does not make what you did, any less reprehensible. I accept that there were no specific acts of cruelty in the way your crime was carried out, but there was also no mercy shown afterwards.
The nature of the offending places it between the mid to upper range of objective gravity for the offence of attempted murder. The high maximum penalty for the offence of attempted murder reflects that it involves proof of an intent to kill.
Your carriage of the firearm as a prohibited person was related to your involvement in the illicit drug trade, making it a more serious example of that offence.[16] I have no doubt that you were aware that you should not have had possession of a firearm given your criminal history. Possession of firearms in connection with criminal activities is all too prevalent and must be firmly denounced.[17]
[16]Berichon (2013) 40 VR 490; Acciarato v The Queen [2019] VSC 264.
[17]Bosa v The Queen [2018] VSCA 97 [24].
Of course, your possession of the Ruger handgun was integral to the attempted murder charge, and the Court must avoid any aspects of double punishment, whilst noting that Charge 2 involves distinct elements.
The sentence imposed in Western Australia for possession of the two firearms found in your custody when you were arrested, must also be considered on a totality basis.[18] As discussed earlier, one of the firearms was the same Ruger handgun that you used to shoot Mark Handler. The other was a sawn-off shotgun. The 12 months you have already served for that offending has been considered in the overall synthesis of sentencing factors in your case. Taking that factor into account and taking into consideration the overlapping factual scenario founding Charges 1 and 2 there is a basis for moderation of the sentence on Charge 2, and substantial concurrency with the sentence to be imposed on Charge 1. On 27 May 2020, you were sentenced at the Melbourne Magistrates’ Court to 3 months imprisonment for trafficking amphetamine, arising from the drug related aspects of the incident before this Court. I have taken into account that sentence, which you are currently undergoing, which impacts on the calculation of presentence detention, but I note that the remainder of the sentence will be served concurrently.
[18]The principle of totality applies to criminal offences bearing a relationship to one another committed by the same offender where the offender is sentenced in different states or territories: Mill v R [1988] HCA 70; (1988) 166 CLR 59. See also R v Harrison (1990) 48 A Crim R 198-199 per Hunt J, where his Honour said, ‘The duty of the court in the second state which is sentencing a prisoner… is to consider what sentence should be imposed for local offences additional to that already imposed in the other state as if all the offences have been committed in the one state, bearing in mind the principle of totality.’
Your personal circumstances invoke some important matters in mitigation of sentence. After entering prison, you have made every effort to use your time productively. You have avoided using drugs and consistently produced clean urine screens.[19] You have completed several self-development courses.[20] You have taken on a role in the Youth Justice Program at Port Phillip Prison, as a peer educator. Your role is to reside in the Youth Unit and mentor young inmates, many of whom struggle to adapt to life in prison. Ms Anne Hooker, Youth Development Officer at Port Phillip Prison, with over 20 years’ experience in that role, gave glowing evidence at your plea. She explained that in July 2019, you were offered a position as a prisoner mentor, in the youth unit. This is a challenging role, requiring you to be available all day, every day, to help young inmates. Ms Hooker has been impressed by your level of commitment. She is hopeful that you can remain in the same role after your sentencing. A letter was provided by her for the Court, explaining the nature of the role that you fulfil.[21]
[19]Several certificates showing negative drug screening results were tendered.
[20]A Certificate II in Kitchen Operations dated 11 February 2019; an Operator Certificate for participation in Training and Operation of Machinery dated 9 August 2017 (Dept. Of Corrective Services WA); a Certificate of Appreciation for contribution to Port Phillip Prison peer support program dated 16 January 2020; Certificate for participation in the Substance Use Program completed 5 October 2018; Certificate for participation in the 12 hour psycho educational program completed 12 October 2018; Certificate of Appreciation for participation in the Port Phillip International Overdose Awareness and Remembrance Day; Certificate for completion of the six week ‘Change on the inside’ program dated 18 March 2019.
[21]Defence Exhibit C: Letter dated 15 March 2020 signed by Anne Hooker.
I accept that your Major Depressive Disorder, for as long as it subsists, will make your experience of imprisonment more burdensome, than for a person not so afflicted.[22]
[22]Applying Verdins limb 5: ‘The existence of [the condition] at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276 [32].
I also accept that the more stringent regime in place at Port Phillip Prison, because of COVID-19, impacts on your capacity to receive visits and increases the period that you are locked down each day.[23] It is uncertain how long these circumstances will continue, but I accept that they are likely to continue for a lengthy period. Along with these more restrictive operations there is a degree of fear and anxiety for prisoners as a result of the pandemic, and the risks should it enter the prison. Of course, COVID-19 as a factor in mitigation can only attract limited weight, bearing in mind that the executive is responsible for deduction of emergency management days, as appropriate, in recognition of the constraints on prisoners as a result of COVID-19.[24] I made some remarks on this subject at the time of refusing your application to adjourn your plea hearing.[25] The recent case of Wyka & Gardiner v The Queen[26] confirms the limitations to be placed on COVID-19 prison management factors in mitigation of sentence.
[23]The Court received a document published by the Department of Justice and Community Safety titled ‘Novel Coronavirus (COVID-19) information for courts regarding Corrections Victoria operations’ (April 2020) The document refers to alterations to custodial operations due to COVID-19 including suspension of personal visits.
[24]A fact sheet for prisoners published the Department of Justice and Community Safety was referred to during the hearing: ‘Emergency management days – COVID-19’ current as at 20 April 2020. The document referred to potential consideration for emergency management days for prisoners who suffer disruption or deprivation due to the response to COVID-19.
[25]Guest v DPP [2020] VSC 218.
[26][2020] VSCA 104 [160]-[162].
The recent life changing event concerning the murder of your son, is a factor personal to you, that is important to consideration of your current circumstances. You have reached a waypoint in your life, where you appear determined to turn over a new leaf when you are released. The psychological reports tendered on your behalf suggest you now have insight into the need for reformation.
The letters provided by your mother and siblings, and by Mr Bertoni, augur well for the support they will offer, once you have served your sentence. You are likely to find employment, and meaningful ways to occupy yourself when you are released. I consider that you would do well under lengthy parole supervision, if offered that opportunity.
You have a strong incentive to help your family bring up your grandson. Crime and gaol were features of your life, and that of your son, before his untimely death, and you acknowledge the need for this cycle of criminality to end. I accept that you are remorseful at the present time and that your prospects for rehabilitation are very good.
I have reviewed sentences handed down for the offence of attempted murder.[27] I have also considered the statistics produced by the Sentencing Advisory Council although they are now somewhat dated.[28] Beale J attached a table of comparative cases to his decision in the recent case of DPP v Jensen.[29] Many of the sentences I have perused, including that which was upheld by the Court of Appeal in 2020 in R v Tedford,[30] relate in some way to the breakdown of an intimate relationship.
[27]Regarding the sentences for attempted murder that I have perused and discussed , I have kept in mind the limitations attached to the search for examples of current sentencing practices. The potential limitations involved in this exercise were recently adverted to by the Court of Appeal in Astbury v The Queen [No 2] [2020] VSCA 158 , where it was said; ’As has been emphasised on a number of occasions, sentences imposed in other cases are not precedents for the sentence to be imposed in a particular case. At best, a collection of previous sentences may give a court some guidance as to current sentencing practices, which is one factor that the court must take into account in determining the sentence to be imposed in the instant case.’
[28]Sentencing Advisory Council, Sentencing Trends for Attempted Murder in the Higher Courts of Victoria 2001-02 to 2005-06 (Sentencing Snapshot 21, 30 January 2007).
[29][2019] VSC 327.
[30] [2020] VSCA 71.
R v Markham[31] (‘Markham’) bears a closer comparison to your offending on a factual basis, but it is a less contemporary sentence and it may be observed that sentences for offences involving serious violence have tended to increase since 2004.[32] The gravity of the offending in Markham was worse than in your case, and the impact on the victim was greater. Also, the offender was not remorseful, had extensive prior convictions and unfavourable rehabilitation prospects. On the other hand, like Kellam J in Markham, I consider that the attempted murder of Mark Handler was a serious example of a serious offence. Pertinently, Kellam J said in that case, ‘Those who seek to use violence for the settlement of grievances, whether for their own purpose or those of other persons, must know that if they are apprehended severe consequences will follow.’[33]
[31][2020] VSC 443.
[32]See for example Lukudu v The Queen [2019] VSCA 248 [46].
[33][2004] VSC 443 [22].
Regarding Charge 2, I observe that possession of a firearm as a prohibited person, is to be deplored.
Each of the offences require a sentence reflecting general deterrence, denunciation and just punishment. Specific deterrence remains relevant to both offences but deserves less weight because of my positive findings about your focus on rehabilitation, as evidenced by your efforts as a youth mentor whilst on remand.
Rehabilitation remains an important goal of sentencing. You are now 53 years of age and appear to have finally seen the error of your ways. As noted by the Court of Appeal in DPP v Milson,[34] ‘In a climate when sentences for many (if not most) crimes are increasing, it is easy to forget that the protection of the community ultimately is best served by the rehabilitation of an offender. If an offender, whether young or recidivist, can be steered away from a life of crime, the public interest is best served.’
[34][2019] VSCA 55 [71].
Section 5(3) of the Sentencing Act 1991 states that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This principle must be applied when balancing the other principles and purposes of sentencing in your case.
Having regard to all the foregoing matters I sentence you as follows: (stand please)
On the charge of attempted murder, I sentence you to 11 years imprisonment.
On the charge of prohibited person possess a firearm, I sentence you to 12 months' imprisonment. I direct that four months of the sentence on charge 2 be served cumulatively on the sentence on charge 1.
Therefore, the head sentence is eleven years and four months imprisonment. I fix a non-parole period of seven years.
Pursuant to s 18 of the Act, I declare that you have served 728 days of pre-sentence detention,[35] and I direct that the period already served be noted in the records of the Court.
[35]I was informed by the parties that no PSD was declared for the three month sentence imposed on 27 May 2020. This means that PSD for the present matter is for the period 30 May 2018 up to but not including 27 May 2020. I have not made additional orders for cumulation so the remainder of the three month sentence will run concurrently with the sentence I am imposing. This Court has taken into account the Magistrates’ Court sentence in the intuitive synthesis of all relevant matters.
Pursuant to s 6AAA of the Sentencing Act, I declare that, but for your pleas of guilty, I would have imposed a total effective sentence of thirteen years and a non-parole period of 11 years.
I will make the forfeiture and disposal orders sought.
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