Director of Public Prosecutions v Moon

[2022] VCC 2282

IN THE COUNTY COURT OF VICTORIA

AT melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-22-01296
Indictment No. N10604077

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALE MOON

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF PLEA:	13 December 2022
DATE OF SENTENCE:	15 December 2022
CASE MAY BE CITED AS:	Director of Public Prosecutions v Moon
MEDIUM NEUTRAL CITATION:	[2022] VCC 2282

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence

Catchwords:              Plea of guilty – attempted aggravated home invasion – prohibited person possess firearm – conduct endangering persons – offences whilst on bail – three co-offenders – substantial criminal history – risk of double punishment – totality

Legislation Cited:      Crimes Act 1958, s 321M, s 77B, s 23; Firearms Act 1996, 5(1)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Acciarito v The Queen [2019] VSCA 264; Berichon v The Queen [2013] VSCA 319

Sentence:                   5 years and 10 months with a minimum of 3 years and 10 months.

Section 6AAA: 8 years and 4 months with a minimum of 5 years and 10 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Fleming	Solicitor for the Office of Public Prosecutions
For the Accused	Ms A. Patterson	Gallant Law Pty Ltd

HIS HONOUR:

1Dale Moon, you have pleaded guilty to one charge of attempted aggravated home invasion for which the maximum penalty is 20 years; a charge of prohibited person possessing firearm, maximum penalty 10 years imprisonment; and one charge of conduct endangering persons, maximum penalty 5 years. In addition, you pleaded guilty to the summary offence of committing an indictable offence on bail which carries a maximum penalty of 3 months.

2You were born in December 1993. Therefore, at the time of the offending, you were 28 years old. You were living at Jamieson Way, Berwick. Your co-offender Timothy Snow was aged 36 years old, and he was living in Dudley Street, Melbourne. The third co-offender, Tysharni Ryan, was aged 26 and she was also living at Jamieson Way, Berwick.

3The victim Michelle Blake lived at Scarlet Drive, Doveton with her two children in a two-storey house.  The children were not home at the time of the offending.

4Ms Blake and Mr Snow were acquaintances or associates for a period of around six months prior to the offending. The exact basis of their relationship is not clear to me, but they were spending time together in that period.

5On 27 March 2022 at around 12.00am, Ms Blake arrived home and found that Mr Snow was parked in a blue Kia Cerato motor vehicle in her driveway. He was present and she invited him in, and they spent about an hour and a half together. Snow left at around 1.30am. Ms Blake went to bed.

6Snow returned to Ms Blake’s address in the Kia at approximately 10.00am on the same day and told Ms Blake that he had left his bag behind, and he was there to collect it. He entered her residence to search for the bag and he left around two minutes later. Ms Blake says she did not notice Snow was carrying anything when he left.

7At around 1.28pm that same day, Sunday 27 March 2022, CCTV cameras from Jamieson Way Berwick show Snow arriving at Ms Blake’s address in the Kia Cerato. You and Ms Ryan were there when he arrived.

8At around 1.53pm he left the address carrying a dark coloured backpack which he put in the back seat of the Kia Cerato and then he got into the driver’s seat.  Soon after you and Ms Ryan got into the Kia, and the Kia left Jamieson Way, Berwick at around 2.02pm.

9At around 2.35pm the Kia arrived at Scarlet Drive, Doveton parking outside No. 35. CCTV cameras captured the arrival of the Kia. The three of you got out of the car and walked towards Ms Blake’s house.

10Mr Snow is shown in possession of a sawn-off bolt action rifle the size of a handgun. You were in possession of a homemade shotgun. This is the basis of Charge 2 – Prohibited person possess firearm.

11You stopped in the front of the Kia and loaded the shotgun in plain view of Ms Ryan and Mr Snow. You then joined them and all of you walked towards Ms Blake’s property on Scarlet Drive.

12You rang the doorbell. Ms Blake was at home and upstairs with a friend at the time. She walked downstairs to open the door and yelled, “Who is it?”. Mr Snow replied, “It’s me”. Ms Blake saw Snow and you through the front window. She did not know you. She heard you saying something, and then became scared and ran back upstairs. At some point she sent a text to her brother to call police.

13Ms Blake heard the three of you trying to force your way into her house and started a video recording on her phone. She made her way downstairs. When she arrived back downstairs, Mr Snow was at the front window making demands for property or payment while Ms Ryan was removing the fly screen from the front window. Having watched the video, Mr Snow can be seen in possession of a firearm.  Ms Blake told Snow that she did not have what he was looking for and that she did not have any money. Mr Snow demanded that she open the door. The way the case has been put by the prosecution is that it is this conduct on your arrival at the house, with the firearms, that constitutes the charge of attempted aggravated home invasion, Charge 1.

14Approximately 20 seconds later you fired the shotgun at the house causing shotgun pellets to enter the property through the front wooden door with Ms Blake standing on the inside of the front door. She felt the pellets and the timber fragments from the front door shower over her. She did not sustain any injuries from the impact. This is the basis of Charge 3 – Reckless conduct endangering serious injury. The prosecution does not put that conduct as part of the attempted aggravated home invasion.

15The three of you then began to walk away from Ms Blake's residence. As you left, Mr Snow smashed the windscreen of Blake’s Audi motor vehicle, which was parked in the driveway.

16At about 2.39pm the three of you got back into the Kia and left.

17At about 4.49pm the Kia arrived back at your Jamieson Way, Berwick address and the three of you got out of the vehicle. You and Ms Ryan went inside immediately while Mr Snow collected the backpack from the vehicle before he also went inside the address.

18At approximately 7.30pm on 27 March 2022, the incident was reported to police and they attended at Ms Blake's address. Ms Blake described the female, Ms Ryan, and later she identified Ms Ryan on a photoboard.  Police obtained all the relevant video recordings and CCTV footage. 

19They examined Ms Blake's residence which revealed the fly screen window adjacent to the front door had been pulled down from the top and was damaged with the frame having been bent.

20The Audi had damage to the front windscreen with two impact points to the top of the windscreen, in the middle and the passenger side. That is the basis for Mr Snow's criminal damage.  You are not charged with that offence.

21An examination of the front door revealed a hole approximately halfway up the door and right of the centreline (towards the hinged side) with a number of smaller indentations around it. There was also a white/clear plastic object partially lodged in the hole.

22Inside the door in the entrance area, police located small metallic objects spread across the floor to the foot of the stairs and on the console table. Small chunks of wood with white paint that appeared to have come from the hole in the door were also found on the floor and the console table. The metallic objects were shotgun pellets, and the wood was from the discharge of the firearm through the front door.

Arrest and warrants

23The search warrants were later executed.  The Kia was found parked outside the Jamieson Way address. Snow was there at that time the warrants were executed.  He was arrested at that time, and he was taken back to Melbourne West police station where he was interviewed.

24He had the key to the Kia in his possession.  He was also wearing the same clothing that can be seen on the CCTV footage during the relevant times connected to the offence.

25Police also spoke to a man named Peter Norris, who is the principal tenant of Jamieson Way, Berwick. He provided police with access to his mobile phone and on that phone, they located a text message that you had sent at 3.06pm on 27 March 2022 which read as follows:

“I just left a hole in this cunts door t ("T") shit herself and made me fucking go easy I'm shattered I brought her soon as I shot the front door she shit cunt they were behind the door and I just up to the door and went bang and got the bitch”

26The reference to ‘t’, the prosecution says, and I accept, is a reference to Ms Ryan. There is no dispute that you sent that text message.  

27You were interviewed by police on 28 March 2022. You denied any knowledge of the incident or involvement in the incident and claimed that you were at Jamieson Way, Berwick at the time. You denied being the person in possession of the shotgun and said there were no firearms where you were living. You were shown the text message that you sent to Peter Norris but what you said you had been joking about what happened.

28At the time of these offences, you were on bail for other offences. This is the basis of Related Summary Offence Charge 8: Commit indictable offence whilst on bail.

29When Mr Snow was interviewed, he admitted being at Ms Blake's at the time of the incident, but he denied possession of the firearm or trying to get into the premises. He said he was there to get money that had been stolen from him; and that the other male had brought the shotgun, he said.  Mr Snow is pleading guilty to various offences related to this incident in April.

30Ms Ryan made a no comment interview. Her matter has not resolved and is listed currently for a directions hearing in this court.

31At the time of the offending, you did not hold a Firearms Licence. You were a prohibited person as defined by the Firearms Act because you had been sentenced to five months imprisonment for an indictable offence on 24 March 2021.

32The mobile phone video recorded by Ms Blake during the offending was played during the plea hearing and tendered as an exhibit.  The footage shows Mr Snow holding the bolt action rifle and Ryan’s arm can be seen trying to remove the flywire from the front window.  The sound of the firearm being fired is clear and then the recording shows the three of you leaving in the Kia Cerato within a few minutes of your arrival.  

33The balance of the lengthy Prosecution Opening details the evidence implicating you and your co-offenders in the offending and I do not propose to reiterate that other than to say, it seems to me the case against you was a very powerful one.

Personal circumstances

34You are 29 years old. You were raised in Yarraville with your mother and father and one older brother.

35Your father was employed doing carnival work and he was frequently absent from the family home while travelling throughout Victoria and interstate with his employment. You had a difficult relationship with your mother, who did most of the parenting on her own. You and your mother were often in conflict, and because of the family dynamic, your childhood lacked structure and stability.

36You struggled at school; you were an average student. Toward the end of primary school your behaviour deteriorated, and you were expelled. You then attended Bayside High School for 12 months before again being expelled. You went to boarding school in New South Wales for around 12 months before returning to Victoria and attending Kensington Community High School. You left school voluntarily part-way through Year 9.

37You moved out of the family home at the age of 14. You were itinerant for a while moving between friends’ and relatives’ houses.

38At the age of 19, you started working for carnivals travelling across Australia.  You obtained this employment through your father. You did this for three years. Apart from using cannabis you were drug free in that period. You also worked for two and a half years doing a carpentry apprenticeship and then in construction for a brief period.

39These periods of employment correspond with a gap in your criminal history when you were between the ages of around 17-23 years old.

40You have a son who is now two years old. I am told he is subject to a protection order which was taken out after his mother was found unconscious and unable to look after him.  You have no contact with him, but you are made aware of his circumstances. He has recently been diagnosed with global developmental delay, which I accept is a source of concern to you and affects your situation in prison.

41

You have abused a wide array of drugs in your life. By the age of 16, you were regularly using methamphetamine and had tried other drugs such as MDMA and ecstasy prior to that. Apart from the period when you were employed and an

eight-month period after the birth of your son you have been a constant user of drugs. You are taking methadone and suboxone in gaol.  I accept you have been drug free in gaol. You have not completed any detoxification or formal drug rehabilitation programs.

Criminal history

42You have a substantial criminal history for a wide range of offences.  In January 2019 you were sentenced to a period of imprisonment of two months for offences including handling stolen goods, drug offences, possession of a prohibited weapon, and possession of cartridge ammunition and other offences. On that day you also received a community correction order for a period of two years, presumably to take effect at the end of the two months sentence, and you had served 51 days pre-sentence detention, so you would have commenced that community correction order soon after the court hearing.

43In July 2019 you were dealt with for burglary, theft, handling stolen goods, further drug offences, and a controlled weapon offence as well. You received an aggregate sentence of four months for that offending. You were also dealt with for breaching the community correction order. The order was varied, and it would appear you were given another chance to participate in that order at the end of four-month sentence.  On that occasion, you had 55 days pre-sentence detention deducted from that sentence.  In July 2020, you received a sentence of eight months for intentionally causing injury, criminal damage, theft, handling stolen goods and other offences, as well as traffic offences.

44Then in March of 2021 you received a sentence of five months for theft, burglary, attempted theft from a motor vehicle, theft of a motor vehicle, making a threat to kill, driving in a manner dangerous and a possession of drugs, for which you received a fine.  That was the most recent appearance prior to this offending.

45Your criminal history indicates that in recent years your offending has been consistent and serious. Your lifestyle has seemingly been immersed in drugs and offending. The imposition of community-based dispositions has failed to activate your rehabilitation as have the relatively short prison sentences imposed so far. They have not deterred you. In fact, this offending was a substantial escalation in the seriousness of your anti-social conduct.   I accept that you have been a long-term user of drugs, but drugs alone do not explain your constant and serious offending or your participation in the incident before me.

46Of course, you are not to be punished again for your prior convictions, but the sentencing purposes of specific deterrence (the need to send you a message that continued offending will result in lengthier periods of imprisonment) and community protection must be given importance, given your history. Your prior convictions are also relevant to the assessment of your prospects of rehabilitation and your moral culpability.

47It is obvious to observe that your offending in this case was serious. The offence of attempted aggravated home invasion carries a maximum penalty of 20 years. The offending here was clearly premeditated. Your intent was to steal some item or money that Snow believed the victim had taken from him. It is not clear to me what it was but the whole episode smacks of being connected to some sort of criminal activity. The number of offenders involved in an offence such as this is a marker of seriousness and, in this incident, there were three of you.  Two of you of you had firearms and yours at least was loaded. This was planned conduct involving an attempted entry into a private home with guns.  I observe that based on the Prosecution Summary Mr Snow seems to have been the instigator of the incident.

48All that said, I accept the offending was of relatively short duration as shown on the video, and that in fact the three of you left within a few minutes after you had arrived.  On my analysis of the video the actions taken to try and get inside the residence were relatively superficial, excluding the firing of the shotgun of course, which is not put by the prosecution as part of the attempt to enter.

49The prosecution characterised the reckless conduct endangering serious injury as a distinct piece of criminal conduct separate from the attempt to enter. Nonetheless the firing of the gun does illustrate the danger inherent in bringing loaded firearms to someone's residence for a purpose such as an attempt to enter to steal.  But in accordance with the way the case is put, I have not had regard to the discharge of the shotgun as part of the attempted aggravated home invasion.

50Dealing then with that charge, Charge 3: as an example of reckless conduct endangering serious injury, firing a gun at a door with the victim standing directly behind it, is up at the higher end of the spectrum, which I note carries a relatively low maximum penalty of five years imprisonment.  The danger of serious injury from this brazen act was very real, and you were aware of that; your disregard for the safety of the victim is apparent from the text message you sent in the aftermath of the incident. 

51In relation to Charge 2, you were a prohibited person by reason of the sentence you served in 2021. Your prior convictions include offences relating to possession of prohibited weapons and possession and carrying cartridge ammunition.  Those antecedents alone make it a serious offence for you to be in possession of a firearm. In this case you had the firearm with you in connection with the attempted aggravated home invasion.  Furthermore, your possession of the firearm was a necessary precondition to Charge 3, the reckless endangerment.   Plainly you had the weapon for a criminal purpose which was the commission of the other offences on the indictment. I could not infer that you had the weapon for some other additional criminal purpose; however, the prohibited person offence was complete the moment you took possession of the shotgun and then loaded it in public, before you attended the victim’s residence and fired it; and the offence of prohibited person in possession of a firearm is intended to preclude people with relevant antecedents such as you, from being in possession of a firearm at all, and it allows for substantial prison sentences in the event of conviction. There is though the clear potential for double punishment which I will return to.

52The victim did not make a victim impact statement, but in her police statement she referred to feeling scared during the incident and voiced her concern about staying on the property after the incident. I must say though, having watched the video, Ms Blake and the man inside do present as relatively robust victims, but I do not discount that she would have been very frightened by the conduct in this case, which is clear from the fact that in the end she decided to report the matter to the police.

53Given the premediated nature of this offending and its seriousness as well as your ongoing criminality as reflected by the prior convictions, I consider your moral culpability to be substantial.   

54A further aggravating feature is that you were on bail at the time of the offending.

55In the circumstances of this case, general deterrence, denunciation, just punishment and protection of the community are of substantial importance. Given your criminal history the need for specific deterrence is also significant.

Guilty plea

56You pleaded guilty to the charges in this case at a committal mention hearing. No witnesses were ever cross-examined. This was effectively a plea at the earliest opportunity. I accept your plea indicates a willingness to facilitate the course of justice. The objective utilitarian value of your plea is significant. I take into account the principles in the case of Worboyes v The Queen[1] which states that you must receive a palpable amelioration of sentence by reason of your guilty plea and its utilitarian value in the current environment, where this court faces a backlog of trials as a result of the suspension of trials during the pandemic.

[1][2021] VSCA 169

57I also accept that your plea is indicative of some level of remorse for your conduct, although I accept the prosecution submission that it is very difficult to make a finding of genuine remorse or assess the nature and extent of your remorse in these circumstances, and it is clear you certainly had no remorse in the aftermath of the incident given the content of the text message you sent to Mr Norris suggesting the presence of Ms Ryan made you ‘go easy’ during the offending.

Prospects of rehabilitation

58During your time in prison, as I said, you have been on methadone and Suboxone, both of which are drug-replacement medications and I accept you have not used drugs in the time that you have been in custody. I take into account the certificates of programs completed, which include:

(a)   3‑hour AOD and relationships program;

(b)   Healthy Living program;

(c)   Family, Friends and Community program;

(d)   The Adapt program;

(e)   Take Stock A program;

(f)    Take Stock B program; and

(g)   Jobs and Careers program.

59I am also told and accept you have been working in prison, welding farm fences.

60It does seem that you have been using your time in prison profitably. I accept the submission that your prospects are dependent on your capacity to stop using drugs and obtain employment and that in the past for a period you were able to demonstrate that with a job and drug free, you could stay out of trouble. You say that when you are released from prison you intend to live with your parents in Yarraville. You would like to work with protection authorities to resume contact with your son and perhaps play a meaningful role in his life. You are not yet 30 and you do have a work history of some substance, and as I said, you have shown in the past that you are capable of leading a productive offence free lifestyle. These are factors in your favour in assessing your prospects of rehabilitation.

61Against that, you have a substantial criminal history, and this offending was brazen and very serious. In my view you have not in recent years shown any intention to withdraw from drugs and criminality and I can only take a guarded view of your prospects of rehabilitation.

62Having regard to the seriousness of this offending your rehabilitation must give way to general deterrence, denunciation, community protection, just punishment and specific deterrence.  This will be the longest sentence you have received by a considerable margin and the first involving parole. The only appropriate sentence for this offending is a substantial term of imprisonment with a minimum non-parole period. I have reflected the need to address your rehabilitation in deciding the minimum non-parole period.

63I take into account also the ongoing impact of the COVID‑19 pandemic on prisoners. The conditions in prison during the period you have been on remand have been restricted, and I accept these factors have made your imprisonment so far more onerous and have the potential to have an impact in the future.

64The totality principle requires that the overall sentence must be just and proportionate to the total criminality of your offending.  All the offences are closely linked in time and purpose.

65There is an overlap of elements between the prohibited person offence and the aggravated home invasion which requires proof that you had with you a firearm.

66Given the overlap of elements and facts across the offences on the indictment I have had to take considerable care to avoid double punishment. The risk of double punishment is particularly acute in respect of Charge 2 and in the circumstances, I have only ordered modest cumulation for that offence.  I have also had regard to the principles in the cases of Acciarito[2] and Berichon[3] in relation to sentencing for prohibited person offences that have a connection to another offence on the indictment.

[2] [2019] VSCA 264

[3] [2013] VSCA 319

67The sentence for reckless endangerment requires significant cumulation because I have treated that as distinct or largely distinct from the attempted aggravated home invasion.

Sentence

68On the charge of attempted aggravated home invasion, you are sentenced to be imprisoned for a period of 3 years and 10 months, or 46 months.  

69On the charge of being a prohibited person in possession of a firearm, you are convicted and sentenced to be imprisoned for a period of 18 months.

70On the charge of reckless conduct, place in danger of serious injury, you are convicted and sentenced to be imprisoned for a period of 2 years and 8 months.

71The base sentence is Charge 1.  I order that 6 months of the sentence on Charge 2 and 18 months of the sentence on Charge 3 are cumulative on the base sentence and on each other.  That makes a head sentence of 5 years and 10 months. 

72Summary Charge 8, 14 days, that is concurrent.  It is concurrent because I have taken that into account as an aggravating feature of the overall offending.  So that does not alter the total effective sentence.

73The non-parole period mitigates punishment in favour of rehabilitation, but it must be proportionate to the objective gravity of the offending. It is the minimum period justice requires you serve before becoming eligible for parole.

74I fix a minimum non-parole period of 3 years and 10 months.

75I order 262 days pre-sentence detention to be deducted from the sentence that I have imposed.

76Pursuant to s 6AAA of the Sentencing Act I indicate that but for your plea of guilty I would have imposed a sentence of 8 years and 4 months with a minimum non-parole period of 5 years and 10 months.

77I make the ancillary orders sought, which were not opposed.

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