Director of Public Prosecutions v Jibrael
[2024] VCC 2118
•11 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01915
CR-24-01321
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SOREYSA JIBRAEL |
---
JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2024 | |
DATE OF SENTENCE: | 11 December 2024 | |
CASE MAY BE CITED AS: | DPP v Jibrael | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2118 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Guilty plea – Conduct endangering persons – Complicity basis – Prohibited person possess firearm – Dispose of general category handgun – Entrapment by undercover police officers – relevance to moral culpability
Legislation Cited: Crimes Act 1958 (Vic); Firearms Act 1996 (Vic); Crimes (Controlled Operations) Act 2004 (Vic); Telecommunication (Intercept and Access) Act 1979 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Bruce v R [2022] VSCA 100; Kada v The Queen [2017] VSCA 339; R v Taouk (1992) 65 A Crim R 387; Hurst v The King [2023] VSCA 286; DPP v Kumas [2021] VSCA 215; Boulton v The Queen [2014] VSCA 342; Dunn v R [2020] VSC 708; R v Renzella [1997] 2 VR 88
Sentence: 2 years’ imprisonment – 18 month Community Correction Order – s 6AAA declaration – 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 4 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Croxford | Office of Public Prosecutions |
| For the Accused | Mr J Mortley | Papa Hughes Lawyers |
HIS HONOUR:
1Soreysa Jibrael, you have pleaded guilty to the following offences:
(a) One charge of reckless conduct endangering persons contrary to s 23 of the Crimes Act 1958 (Vic) (‘Crimes Act’), which carries a maximum sentence of 5 years’ imprisonment;
(b) One rolled up charge of prohibited person possessing a firearm contrary to s 5(1) of the Firearms Act 1996 (Vic) (‘Firearms Act’), which carries a maximum sentence of 10 years’ imprisonment; and
(c) One rolled up charge of disposing of a general category handgun to a person who was not a licensed dealer without engaging a licensed firearm dealer in transaction, contrary to s 96 (2A) of the Firearms Act, which carries a maximum sentence of 600 penalty units or 5 years’ imprisonment.
2The first charge relates to Charge 1 on Indictment P11141796A.2 (‘Indictment A’).
3The second and third charges relate to Charges 1 and 2 on Indictment P11141796B.2 (‘Indictment B’).
4You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 19 August 2024, which I note is an agreed document.[1]
[1] Exhibit P1.
The offending
Shooting incident
5In the early hours of 25 October 2022, you and two or more unidentified co-offenders drove to Maxweld Street, Ardeer, in separate vehicles.
6You went there to steal cannabis plants from inside a ‘crop-house’. The crop-house address was rented to unknown persons who were cultivating cannabis at the house. As a group you had with you a firearm and a machete for the purpose of carrying out the theft of the cannabis plants.
7One or more of your co-offenders entered the crop-house, forcing entry through the front door. They harvested the mature plants and removed them from the house and put them into their vehicles.
8At about 1.30am a neighbour, John Perry, was in the front room of his home when he woke up and checked his watch. His house was almost opposite the crop-house.
9Mr Perry’s attention was drawn to the sound of a car door slamming and muffled voices. He looked out the window and observed a skinny Caucasian male on the nature strip opposite. The male appeared to Mr Perry to be using a torch to look inside Mr Perry’s son’s vehicle, which was parked on the opposite side of the street.
10Mr Perry walked outside the front of his house, activating his front sensor light. As he approached the road, he heard a car horn beep three times from the left, which he thought was consistent with being a “look-out”. For his protection Mr Perry picked up a piece of wood from the back of his own utility vehicle, which was parked on the street, and continued to walk to his son’s vehicle.
11As he walked onto the roadway, Mr Perry heard a car horn beep again, which caused him to look towards the sound and away from the person with the torch. As he did so, one of your co-offenders discharged the firearm in Mr Perry’s direction.
12Multiple pellets from the shotgun impacted Mr Perry to the right side of his face and chest. He instantly felt pain to his face and suffered impaired vision, and believed he had been shot with a shotgun. He began to walk back towards his house to get off the road. About 5 seconds later he heard another loud bang, which sounded like a second gunshot. He did not feel any impact.
13Mr Perry heard someone saying words to the effect that they had to hurry up and get out of there. You and your co-offenders then left the scene in your respective vehicles.
14Mr Perry was able to get back to his house where he was assisted by his partner Myra Cahill. At 1.37am Ms Cahill phoned 000 and reported the incident.
15Paramedics and police attended the scene and Mr Perry was taken to the Royal Melbourne Hospital. He was examined in the Emergency Department and then underwent surgical repair to a serious penetrating eye injury to his right eye. Two pellets were dislodged from his body naturally later.
16The prosecution case is that you and your co-offenders had agreed to enter and steal the cannabis plants from the address at Maxweld Street, and that as part of the scope of the agreement one of the unknown co-offenders had a loaded shotgun, intending to use it in furtherance of completing the theft/for their protection.
17You were charged on the basis that you knew your co-offender was carrying the loaded firearm for that purpose, and that it would probably be discharged, and thereby place a person in danger of suffering a serious injury. It is this charge to which you have pleaded guilty (Charge 1 – reckless conduct placing person in danger of serious injury – complicity basis).[2]
[2] Crimes Act s323(1)(d).
18The prosecution accepts that your offending is not aggravated by the injury that was actually caused to Mr Perry. At the risk of repetition, you have pleaded guilty, on a complicity basis, to a charge of reckless conduct endangering persons.
19The court was informed that no-one else has been charged with offending related to the actual possession and discharge of the firearm.
Police investigation
20Police examined the scene of the shooting and identified that it had occurred outside the Maxweld Street address. The front door was open and police could smell cannabis from inside. Police obtained a search warrant for that address.
21There was no one home. The house contained a sophisticated hydroponic cannabis crop setup in multiple rooms. Several mature plants had been harvested by cutting them off at the trunk and removing them. The pots were disrupted with stakes moved and fresh leaves and dirt on the floor, consistent with recent harvesting. About 70 immature plants remained.
22The front door showed damage consistent with having been forced open.
23Items seized were examined but no fingerprints were obtained from them or the house.
24During the scene examination police located a machete in the driveway, between the road and footpath. Police seized the machete for DNA testing.
25The machete was later examined by forensic biologists for presence of DNA. A four person mixed profile was located on the handle. The sample was compared with your DNA. It was 100 billion times more likely that you were a contributor to the sample.
26Police obtained CCTV footage from various homes in the area. CCTV in the area shows three vehicles (blue, red and dark-coloured) travelling in convoy together before and after the shooting. The vehicles are captured travelling down Maxweld Street and also Fitzgerald Road in Ardeer.
27At the time of the offending you were utilising a mobile phone number ending in 414 which was registered under your name and at your home address.
28Call charge records and Event Based Monitoring records were obtained by police and examined. The movement of your mobile phone was consistent with your movement from your home in Hoppers Crossing to the scene of the shooting in Ardeer, and then to being picked up by taxi in Sunshine West and dropped off in Altona Meadows.
29A technical expert from Optus used the telecommunications records to compile two reports with maps depicting the phone towers that your mobile phone number was connected to at various times.
30At 2.15am you called 13CABS taxi driver Apnavi Arora and asked to be picked up. Mr Arora arrived at the location and waited. At 2.25am he phoned your number as you were late to the meeting spot. When you arrived you got out of a white 4 wheel drive vehicle and into the taxi. Mr Arora dropped you in Altona Meadows.
31Mr Arora states that he regularly drove you and had picked up and dropped you off at your home or Altona Meadows on a few occasions. On 12 July 2023 he identified you, in a photo board, as the person who caught his taxi on the night of the shooting.
A Covert Operation leads to Entrapment
32On 5 February 2023 police were authorised to conduct a covert operation in relation to you. Three covert operatives commenced a relationship with you and audio-recorded a number of conversations.
33On 16 March 2023 they engaged in a conversation with you discussing your involvement in a prior shooting incident. During this conversation, you made admissions, apparently without being warned, that you were complicit in the shooting incident. You stated:
(a) You find cannabis grow houses using thermal cameras;
(b) At a “job” that went wrong you were shot once (gesturing to your back);
(c) When asked if it was by a sitter you said, “nah I think he came from the other side”;
(d) When asked if you had shot the person, you said “yeah we got him”;
(e) Asked if the victim was ‘six feet under” you said you weren’t sure as it was really dark;
(f) When asked what type of firearm was used, you said it was a shotgun;
(g) You had never been arrested for it and you would leave “babies” (immature plants) behind to stop it being reported to police;
(h) The incident happened before Christmas;
(i) It was in the Sunshine area;
(j) When asked if the person shot was a ‘sitter’, you said the person had come from up the road;
(k) You said sitters live in close proximity and watch the house through CCTV;
(l) You said it was your associate that fired two shots with the shotgun;
(m) You weren’t aware where the victim was shot; and
(n) You thanked your associate as it was your job anyway.
34There was no objection to this evidence being part of the factual summary.
35On 17 May 2023 you engaged in another conversation with covert operatives about the prior shooting incident where you made admissions, apparently without first being warned that you were complicit in the shooting incident. You stated:
(a) With four others you attended the address and stole the crops from inside;
(b) You were not the one who did the shooting;
(c) You then all separated and went your own ways, you went to your cousin’s house;
(d) You later helped to cut, dry and bag the cannabis;
(e) You only got a $600 payment, not any profits.
36There was no objection to this evidence being part of the factual summary.
37On 26 May 2023, police seized a mobile phone belonging to one of your associates, Matthew Duong. On the phone were two incoming videos sent from your Snapchat account at 7.49pm on 25 October 2022, showing what appears to be gunshot wounds to a dark skinned back and a large hole in clothing. This is consistent with your account on 16 March 2023 to the covert operatives about being shot in the back during the incident.
Firearms offences
38On 15 February 2023 authority was granted pursuant to Crimes (Controlled Operations) Act 2004 (Vic), for police officers to engage in a covert operation targeting you for alleged firearms offences.
39On 13 April 2023 a Telephone Intercept warrant was issued pursuant to the Telecommunication (Intercept and Access) Act 1979 (Cth).
40On 3 March 2023 two covert operatives met you while you were at Werribee Police Station. You had been interviewed in relation to an unrelated matter and released without charge. Posing as persons engaged in criminal activity, the covert operatives gave you a lift home to your address in Hoppers Crossing.
41The operatives recorded the conversation they had with you while you were in the vehicle. During this conversation you indicated that you had a .22 firearm, and when asked if it was to keep or sell, you said you were going to sell it. You provided your Snapchat name “jibjib_rpg”.
42The covert operatives and you engaged in subsequent communications via Snapchat where you discussed the sale of firearms. Most of these communications were initiated by police.
43During one recorded conversation on 17 May 2023 you said you were part of the ‘RPG’ gang.
Sales
44Between 8-29 March 2023 the covert operatives engaged in recorded communications with you during which an agreement was made for them to purchase a firearm from you. On 24 March 2023 you offered to sell a particular firearm for $7,000. It was agreed the deal would occur on Thursday, 30 March 2023
45On 29 March 2023 you sent a Snapchat video to the covert operatives of you holding a cut down .22 calibre bolt action rifle that you were offering for sale (Charge 1 - prohibited person possess firearm – rolled up).
46On 30 March 2023 two of the covert operatives picked you up from the vicinity of your home address as had been arranged. You directed them to the address of an associate, Eh Ler Shee, in Hoppers Crossing. One operative gave you $7,000 as payment for the firearm. You counted the money, and sent photos of it to someone via Snapchat.
47Upon arrival at the Hoppers Crossing address you made a call, asking for someone to come out. Eh Ler Shee walked towards you carrying a green shopping bag and entered the front seat of the vehicle. He introduced himself as ‘Chris’ and handed the bag to one of the operatives. You gave Mr Shee the money, which he counted.
48The bag contained the shortened .22 calibre bolt action rifle, along with ammunition and a cleaning kit. You gave instructions on how to operate the firearm safely (Charge 2 - dispose of general category handgun – rolled up charge).
49You had joint custody and control of the firearm with Mr Shee (Charge 1 – prohibited person possess firearm – rolled up charge).
50Mr Shee then returned to his house and the covert operatives drove you home.
51The firearm was subsequently photographed and then examined by a firearms expert. It was found to be an unregistered Squires Bingham brand .22 bolt action rifle with the serial number filed off. The barrel had been shortened to a length of 111 millimetres. The wooden buttstock had also been modified to reduce its length. It was capable of discharge by the normal method. The .22 calibre riddle Stirling brand ammunition was suitable for use in the firearm.
52Following this deal, you agreed to sell more firearms to the operatives.
53On 8 April 2023 you contacted one of the operatives via Snapchat and said you had a .22 handgun for sale for $8,500. You sent through a video of the handgun, and they agreed to purchase it. After a number of delays in sourcing the handgun, the deal was arranged for 13 May 2023.
54On 13 May 2023 you communicated with one of the operatives via Snapchat, arranging to meet in Hoppers Crossing for the firearms deal. You said there was a bullet stuck in the barrel which could be removed with the cleaning kit previously supplied. You directed them to meet you at Cambridge Reserve.
55On 13 May 2023 telephone intercepts captured a number of conversations between you and your associates Mr Shee and Mr Duong about obtaining the handgun for you to on-sell to the covert operatives. These included:
(a) You telling Mr Duong your friend would buy the ‘gat’ (gun) and give you the money;
(b) You telling Mr Shee to get the gat and you would give him the money later;
(c) You and Mr Shee discussing the price of a firearm being $4,500;
(d) You confirming with Mr Shee that he had it; and
(e) You and Mr Shee discussing that the firearm had a bullet stuck in it.
56At about 4.45pm you, Mr Shee, and Mr Duong met with two covert operatives in the vicinity of Cambridge Reserve in Hoppers Crossing.
57You got into the covert operatives’ vehicle and they drove a short distance before parking in a carpark. You handed one operative a silver-barrelled handgun and 3x .22 bullets. They gave you $8,000 in cash, which you put in your pants pocket (Charge 1 – prohibited person possess firearm – rolled up charge; Charge 2 – dispose of general category handgun – rolled up charge, Indictment B).
58You got out and into the other vehicle with Mr Shee and Mr Duong.
59This firearm was photographed and later examined by a firearms expert. The firearm was found to be an unregistered home-made single shot pistol with a timber frame. A ruptured fired cartridge case was lodged inside the chamber. The firearm was capable of discharge by putting a cartridge in the chamber. The 3x .22 calibre CC brand cartridges were suitable for use in the firearm. Due to its length the firearm was categorised as a general category handgun.
Arrest and Interview
60On 26 May 2023 police executed a search warrant on your home address and arrested you. You were taken to Werribee police station where you participated in a recorded interview under caution.
61Regarding the shooting incident you stated:
(a) In relation to your mobile number ending in 414 with Optus; you had had it for a year and no one else used your phone;
(b) You didn’t know where Ardeer is and had never been there;
(c) On 25 October 2022 you were probably home, you were always at home;
(d) You didn’t know what a crop or crop house is;
(e) You were not at that address or involved in the shooting, you weren’t there;
(f) You did not recognise the machete;
(g) You couldn’t explain how your DNA was on the machete;
(h) When it was suggested your call charge records showed you were in Ardeer at 1.30am, you said you didn’t remember being in that area, you were not there; and
(i) You denied catching the taxi from Fitzgeralds Road.
62Regarding the firearms sales:
(a) When shown a still of the video of you with the .22 rifle sent on 29 March 2023 you said “how do you know that’s me” and denied being in possession of it;
(b) You denied selling the rifle or being given $7,000 by police for it on 30 March 2023; and
(c) You said ‘I dunno’ to meeting police on 13 May 2023 and selling them the handgun.
Objective Gravity
63The gravity of the offences for which you have been charged is reflected in the maximum penalties available for each. These are serious offences. The firearms offences are designed to protect the community from gun-related crime and violence.
64In relation to Charge 1 on Indictment A, the prosecution submitted that the planned nature of the offending, in particular the use of radar guns to identify crop houses, and the fact that your co-offender carried a loaded firearm, mean the objective seriousness for that offence is ‘quite high’.
65Your counsel, on the other hand, emphasised that you are charged on a complicity basis in that you attended the crop house by agreement with other unknown persons, knowing that one of them had a gun and that it would probably be discharged, placing a person in danger.
66I accept your counsel’s characterisation. Yours is a relatively low level example of the offence. The principal aggravating feature is clearly that the weapon involved was a gun.
67Turning to the firearms offences, the maximum penalties reflect the threat posed to the public by guns and the importance of community safety. As I said during your plea, it is curious that the offence of possession carries a maximum penalty double that which applies to the disposal offence.
68It is also relevant to sentencing that both charges are rolled up. All else being equal a rolled up charge will attract a sterner sentence than a single offence charge.[3]
[3] Bruce v R [2022] VSCA 100, [31].
69I consider that the two firearms offences are of mid-range objective gravity.
Moral culpability
70In addition to taking into account the objective gravity of an instance of offending, section 5(2)(d) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) requires a sentencing court to have regard to ‘the offender's culpability and degree of responsibility for the offence’.
71The moral culpability of an offender may be reduced for a number of reasons including youth or mental illness. Where a court finds that an offender’s moral culpability (as opposed to their legal responsibility) is reduced, ‘the court should ensure that the punishment is just in all of the circumstances and, as well, there may be a reduced need to denounce the crime through the sentence imposed’.[4]
[4] Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomas Reuters, 3rd ed, 2009), 295.
72In the present case, your counsel recognised that the illicit sale of firearms is inherently serious offending but submitted that your moral culpability for the offending making up charges 1 and 2 on Indictment B ‘… is lessened due to the fact that the offending would not likely have occurred but for the involvement of covert police…’.[5] I accept that in certain circumstances, where an offence occurs only or mainly because of encouragement by law enforcement officers, a court will take that into account in determining the offender’s moral culpability and, correspondingly, the appropriate sentence to impose.
[5] Defence Outline of Submissions for Plea dated 12 November 2024, [31].
73The case of Kada v The Queen[6] is a leading authority on this question in this state.
[6] Kada v The Queen [2017] VSCA 339 (‘Kada’).
74Kada was an appeal from sentences imposed for drug trafficking. Some of the drugs were sold by the offender to a covert operative called ‘Russell’. Both the sentencing Judge and the Appeal Court considered the evidence of Russell’s involvement to be inconclusive. As the offender was extensively involved in other drug trafficking, the entrapment did not materially mitigate this particular offending.[7]
[7] Ibid, [85].
75In its judgment in Kada, the Victorian Court of Appeal quoted with approval the following passage from the judgment of Badgery-Parker J in the NSW case of R v Taouk:
[W]hen it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or inducement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as to diminish his culpability.[8]
[8] (1992) 65 A Crim R 387 at 404 (emphasis added).
76After considering a number of interstate authorities, the Court in Kada[9] summarised the principles that are relevant to assessing the significance of police involvement in criminal drug trafficking activity to sentencing as follows:
[9] Kada (n6) [72].
(a) The involvement of police in the commission of a trafficking offence is a relevant sentencing consideration.
(b) The weight to be given to police involvement will depend on the circumstances of each case.
(c) The fact that there is a real possibility that the specific offending would not have occurred but for the involvement of the police may carry some weight. As this causation element will be present in many cases, considered in isolation, it will not necessarily be an important sentencing consideration.
(d) The primary focus will usually be on how the circumstances of the police involvement in a particular case bear upon the culpability of the offender. Police involvement does not have a predetermined or uniform impact on culpability. Rather, there is a spectrum along which that impact is to be assessed, ranging from very little impact to substantial impact.
(e) Factors that affect the impact of police involvement on culpability include the following:
(i) The manner in which the involvement of the police contributed to the offending, including the nature and degree of any pressure or coercion applied, or encouragement or inducement offered, by the police to secure the commission of the offence.
(ii) The extent to which the involvement of the police contributed to the offending.
(iii) Whether the police dealt with the offender directly or through an intermediary. Ordinarily, the more remote the police involvement — including any pressure, coercion, encouragement or inducement by them — is to the offender, the less weight it will have on the sentencing synthesis.
(iv) The readiness with which the offender responded to any requests for drugs by the police. The involvement of the police will carry greater weight if the will of the offender is overborne by them, compared to a situation where the offender regards the requests for drugs from the police as a welcome expansion to his or her trafficking operation. Conversely, police involvement will carry less weight if the offender, rather than the police, instigated the relevant trafficking transaction.
(v) Whether the police became involved at a time when the offender was already trafficking in the relevant drug and, if so, the scale of his or her operation at that time and the scale of operation resulting from the police involvement. The involvement of the police will carry less weight if their requests for a drug can be accommodated within the offender’s existing supply lines, compared to a situation where those requests can only be accommodated by material changes to the offender’s scale of operation and supply lines.[10]
[10] Ibid [72].
77Adapting these general principles to the present case (which is of course concerned with firearms trafficking), I am satisfied that, contrary to the position in Kada’s case:
(a) There is a real possibility that but for the assistance, encouragement or incitement offered by the covert police officers, you would not have either possessed the firearms or sold them;
(b) Your will was not overborne by the covert operatives; and
(c) In all the circumstances of the case the involvement of the police in the commission of the crimes was such as to diminish your culpability to a moderate extent.
78The principal reasons for reaching these conclusions are that:
(a) at the time the undercover police approached you at the police station on 3 March 2023, you had no history of either possessing firearms or offering firearms for sale;
(b) your firearm-related offending was limited to the October 2022 offending discussed earlier in which it is not suggested that you possessed the gun that was fired, let alone fired it;
(c) the covert operatives initiated much of the contact, often on a daily basis and were very persistent – for example, the call records for 13 and 14 March 2023 record that covert operative 346 made ‘multiple calls’ to you which ‘went unanswered’;[11]
(d) this was not a case of a welcome expansion of an existing business but rather a situation where police instigated the relevant activity (albeit that you were clearly a willing participant);
(e) the payment offered at least for the second weapon may well have been above the market rate and can therefore be seen as an inducement;[12]
(f) police were aware from their discussions with you that you needed money to feed your drug habit and were prepared to engage in serious criminal activity for minimal reward;
(g) the covert police transported you to the relevant locations and drove you home; and
(h) the approach by police was direct and not through an agent.
[11] Depositions dated 18 December 2023, 217, 219.
[12] Police paid $8,000 for a homemade pistol that was acquired by Eh Ler Shee for $4,500.
79It is important to recognise that you were hardly a reluctant participant in this process. On the contrary, at different times you offered to sell drugs and a stolen car to the covert operatives.
80The present case may be contrasted with those in which a person volunteers to covert operatives that he can acquire firearms and then actively pursues them to achieve the sales.[13] It is also somewhat different to a case where the offending is initiated by a covert operative but is then enthusiastically engaged in by the offender.[14] In such cases, the ‘entrapment’ will not mitigate moral culpability to any real extent if at all.
[13] See, eg, Hurst v The King [2023] VSCA 286 [90].
[14] See, eg, DPP v Kumas [2021] VSCA 215 [65].
81In all the circumstances, I accept that yours is a case where the role of the police in your offending reduces your moral culpability for the two firearms offences to a moderate degree and I have reflected this in the sentences that I have imposed.
Personal circumstances
82You were born in New Zealand in 1997 and you are now 27 years of age. At the time of the offending, you were 25.
83Your family had emigrated from Ethiopia the same year you were born, to escape social and political upheaval following the Ethiopian Civil War.
84You come from a hardworking family; your father worked as a taxi driver and cleaner, and now works in disability support, and your mother works in childcare.
85You have two younger siblings, a sister and a brother.
86You lived with your family prior to your offending and remain close to them. You are fortunate that your family has been supportive of you. I note that your mother, father, sister and brother have all been present in court at both your plea hearing and again today.
87You were taken back to Ethiopia at age 10 and the experience appears to have had a profound effect on you. In a report made available to the court psychologist Alison Mynard reports that you were ‘exposed to war activity, hearing gunshots nearby in the street, seeing someone being chased and shot.’[15] You recall seeing many scary things including bodies disfigured from the war and ‘humans that don’t look like humans’, and Ms Mynard reports that these images are etched into your mind.[16]
[15] Psychological Report of Alison Mynard dated 27 July 2028 4 (‘Mynard report’).
[16] Ibid.
88In general you describe your childhood as ‘okay’, denying any trauma or abuse within your family unit. You did however experience bullying and racism, leading to fights with other students. At one point this was bad enough that your mother dropped you directly to class to avoid the children who were bullying you.[17]
[17] Ibid, 2.
89You struggled academically and had a teacher’s aid in primary school, but neither your father or you can recall any particular diagnosis you had at this stage. You passed Year 11, but failed Year 12. You report having had trouble concentrating, finding it hard to read and retain information. You were often truant from school leading to failure based on attendance rate and your father reflects that he believes you lost hope in your abilities and gave up on school.[18]
[18] Ibid.
90You began to drink and smoke cigarettes regularly at 17 and this quickly progressed to consuming a bottle of wine minimum and up to a slab of beer each day, and regularly passing out from drinking. You report engaging in stupid and impulsive behaviours while drinking, and acknowledge alcohol to be a major problem for you. In recent years you have commenced using hallucinogens and methamphetamine, and polysubstance use was heavy at the time of offending and up until your remand.
91After leaving school you worked sporadically with your uncle in his panel beating shop however you have subsisted on Centrelink benefits for most of your adult life. Your counsel submitted that your offending behaviour was motivated by your need to obtain money to fund your drug use.
Criminal History
92You have a relevant criminal history dating back to 2017 when you were 20. You have been imprisoned for violent offending on several occasions in both this court and the Magistrates’ Court. You have also been sentenced to community based sentences, one of which you breached in 2018.
93However, as your counsel pointed out, you have no prior convictions that are related to firearms.
94Most recently, you were sentenced to an aggregate sentence of 330 days in custody for offending including Affray and driving offences. On 16 February 2023, the Magistrates Court declared the time you had served as entirely referable to that sentence.
95The present offending occurred within a few weeks of your release from custody.
Mental Health
96Your lawyers provided three reports to the court:
(a) A report dated 27 July 2018 prepared by Alison Mynard, Clinical Psychologist;[19]
(b) A report dated 9 September 2024 prepared by Warren Simmons psychologist;[20] and
(c) a report dated 7 October 2024 from Dr Mathew Staios, clinical Neuropsychologist.[21]
[19] Mynard Report (n15).
[20] (‘Simmons report’).
[21] (‘Staios report’).
97The Mynard report was prepared in relation to an earlier court appearance. It is of limited assistance to me other than in relation to the detailed history that was taken. Ms Mynard diagnosed you with Generalised Anxiety Disorder, Major Depressive Disorder, ADHD (provisional) and Substance Abuse Disorder (Alcohol).
98Mr Simmons saw you via videoconference on 2 and 9 September 2024. He also considered Ms Mynard’s report. Mr Simmons diagnoses you with Post-Traumatic Stress Disorder from your childhood experiences in Africa.[22]
[22] Simmons report (n20) [31].
99Regarding the offences before the court, Mr Simmons records you telling him that you were trying to obtain drugs. Mr Simmons notes a pattern with your prior offending ‘which appear to have always been related to substance use in one form or another’.[23]
[23] Ibid, [30].
100Mr Simmons recommends that you have a full neuropsychological assessment given your score on the cognitive tests he administered.
101That assessment was performed by Dr Staios who saw you on 30 September 2024. Dr Staios confirms the diagnosis of PTSD.[24] He administered several tests to assess your current level of cognitive functioning. He reports that your abstract verbal reasoning skills and general knowledge fell within the extremely low range and your vocabulary knowledge fell within the lower end of the borderline range.
[24] Staios report (n21) [3.9].
102Dr Staios concludes that your general intellectual functioning fell within the Extremely Low Range. Taking the results at face value, Dr Staios explains that you perform ‘at the level of somebody with a severe intellectual disability or a severe traumatic brain injury’. However, Dr Staios considers that your test results ‘must be interpreted with caution’ because of the ‘abnormal test-taking behaviour during testing’.[25] Overall, your profile is ‘not an accurate indication of your level of cognitive functioning’.[26]
[25] Ibid, [7.2].
[26] Ibid, [7.2].
103In these circumstances, it is difficult for the court to attach much weight to the results reported by Dr Staios. Having said that, there are concerning features of your profile and I will order that a copy of each of the reports be provided to Corrections along with these reasons to inform their dealings with you.
104Finally, the court received a report dated 20 November 2024 from Forensicare. You were assessed by Senior Mental Health Clinician Ian Berrisford.[27] The report notes that you presented with mild mental health difficulties. Mr Berrisford states that the relationship between your mental illness, drug use and offending are clear and you acknowledged this link.[28]
[27] Mental Health Advice Referral Service Assessment dated 20 November 2024 (‘Forensicare report’).
[28] Ibid, 3.
Prospects of rehabilitation
105Mr Simmons assessed your prospects as ‘guarded’ given that your previous periods in custody do not appear to have deterred your substance use nor resulted in significant changes to your behaviour. He notes that there are few positive aspects of your life such as employment or a relationship to motivate you. On the more positive side, Mr Simmons notes that you are reaching an age where offending does tend to taper off.[29]
[29] Simmons report (n20) [33].
106On another positive note, Ms Mynard refers to your very stable family and the good supports around you. Fortunately for you this has not changed in the intervening period. With assessment and treatment for your mental health and cognitive issues, Ms Mynard opines that your risk of alcohol abuse and further offending will reduce.[30]
[30] Mynard Report (n15) 7.
107It is also positive that you have not wasted your time in custody. In a letter dated 12 November 2024, Jermie Nyetam, of Jesuit Social Services informs the court that you have been an active participant in African Visitation and Mentoring Program while in custody. The court has also received a number of certificates recording the courses that you have completed while in custody.
108Your history of substance abuse and the related offending are of concern.
109Corrections has assessed you as a high risk of general reoffending.[31]
[31] Community Corrections Order Assessment Outcome Report dated 25 November 2024, 2 (‘CCO Assessment Report’).
110The Forensicare report also included a risk assessment. The author found that there is ‘no potential for future violent offending … in the absence of drugs’.[32] Because you have been abstinent while on remand for 18 months, Mr Berrisford concludes that release from custody ‘with the supports and monitoring provided by the Corrections Order’ will provide you with a ‘good opportunity to build on the progress [you have] made’. On a more pessimistic note, the report recognises that ‘there is potential for relapse given the availability of drugs and immediate temptations when facing the stress of everyday life outside prison’. Mr Berrisford considers that mental health and AOD supports ‘will therefore be essential for [you] to continue with [your] recovery’.[33]
[32] Forensicare report (n27) 3.
[33] Ibid.
111On balance, having regard to these various sources of expert advice, I agree with Mr Simmons’ assessment of your rehabilitation prospects as ‘guarded’.
112I have sought to promote your rehabilitation in both your interests and those of the community in the sentence that I have imposed taking into account Ms Mynard’s prognosis and the report of Mr Simmons.
Matters in Mitigation
113First and foremost there is your plea of guilty. This resulted from a lengthy period of negotiation between your lawyers and the prosecutors. You had indicated a preparedness to plead guilty to the firearms offences prior to the committal hearing and pleaded guilty to the reckless endangerment charge as soon as the prosecution was prepared to file that charge.
114I accept that in the unusual circumstances of this case, the guilty plea is a relatively early one.
115Your guilty pleas are both an acknowledgment by you of your responsibility and some evidence of remorse.
116The pleas save the prosecution and the court the resources associated with a trial and save the witnesses the ordeal of giving evidence. You are entitled to a discount on sentence for this utilitarian benefit.
117You were arrested and remanded in May of 2023 and have been in custody since that time. While not remarkable, a delay of 18 months is significant.
A Combination Sentence?
118In the case of Boulton,[34] the Court of Appeal explained that a sentence which combines a term of imprisonment with a community correction order can meet a range of sentencing purposes even where the offending is serious.
[34] Boulton v The Queen [2014] VSCA 342.
119I have concluded that yours is such a case.
120On 25 November 2024, Corrections assessed you as suitable for a CCO despite also assessing you as a high risk of re-offending. The report noted that you demonstrated some remorse for your offending and that this could be further explored under the proposed CCO.[35]
[35] CCO Assessment Report (n31) 2.
121I have followed the recommendations in the report in imposing the special conditions.
122Although the maximum penalty for the firearm possession charge is higher than that of the firearm disposal charge, I have treated the latter as the more serious offending. This is because as far as you knew you were selling guns to criminals and in circumstances in which you would have expected that the guns would be used in further offending.
Orders
123Taking into account my assessments of the objective gravity of your offending, your moral culpability, your age and personal circumstances, and the need to achieve general and specific deterrence and to protect the community and the need to promote your rehabilitation, I make the following orders:
(a) On Indictment A, charge 1, conduct endangering persons, you are convicted and sentenced to 10 months’ imprisonment;
(b) On Indictment B, charge 1, prohibited person possess firearm, you are convicted and sentenced to 12 months’ imprisonment;
(c) On Indictment B, charge 2, disposal of general category handgun, you are convicted and sentenced to 16 months’ imprisonment and a Community Correction Order of 18 months’ duration. This is the base sentence.
(d) Four months of the sentence imposed on both charge 1 on Indictment A and four months of the sentence on charge 1 on Indictment B will be served cumulatively on the base sentence.
(e) The total effective sentence is therefore 2 years’ imprisonment to be followed upon your release by a CCO for 18 months.[36]
[36] I have not set a non-parole period – see Sentencing Act s 11(2A) and Dunn v R [2020] VSC 708.
(f) The punitive purpose of your sentence having been served by the custodial component, the CCO will be wholly therapeutic. In addition to the general statutory conditions, I impose the following special conditions:
(i)You must participate in treatment and rehabilitation programs as directed for mental health, drug and alcohol abuse, and programs to reduce offending.
(g) You will be under supervision for the duration of the order.
(h) You will be judicially monitored by me. The first session will be 3 months after you are released from custody on Monday, 1 September 2025 at 9.15 am.
(i) If you breach the Order, you can be brought back to court and sentenced to up to 3 months’ imprisonment for breaching the Order and re-sentenced on the original offending.
(j) The particulars of the Order are on the document that you will shortly be asked to sign. I cannot make the Order unless you agree to me doing so. Do you agree to the court imposing this order on you?
(k) Pursuant to s 18 of the Sentencing Act, I declare that the period of 565 days that you have served on remand in relation to the offending before the court is to be reckoned as time served in relation to this sentence. I have also had regard to the 114 Renzella[37] days as part of my assessment of totality.
[37] R v Renzella [1997] 2 VR 88.
(l) I make the disposal order that is sought noting that it is unopposed.
(m) Finally, pursuant to s 6AAA of the Sentencing Act, had you pleaded not guilty, I would have sentenced you to 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 4 months.
0
6
0