Director of Public Prosecutions v Nghi Thanh Le
[2019] VSCA 258
•12 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0232
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| NGHI THANH LE | Respondent |
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| JUDGES: | MAXWELL P, NIALL and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 October 2019 |
| DATE OF JUDGMENT: | 12 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 258 |
| JUDGMENT APPEALED FROM: | R v Le (Unreported, Supreme Court of Victoria, Justice Emerton, 3 October 2018) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Conduct endangering life (14 charges) – Sentenced to 5 years and 3 months’ imprisonment, non-parole period 4 years – Whether manifestly inadequate – Respondent fired shots through door and windows – Whether respondent knew police officers were outside – Aggravating factor and knowledge not established – Sentence within range – Appeal dismissed – DPP v Arvanitidis [2008] VSCA 189, Crimes Act 1958 s 22.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce QC with Mr P J Smallwood | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr P J Hannebery QC with Ms J Poole | Haines & Polites |
MAXWELL P
NIALL JA
T FORREST JA:
Introduction and background
Early on the morning of 27 February 2017, at least 14 members of the Clandestine Laboratory Squad of Victoria Police attempted to effect, under cover of darkness, an armed forced entry of a house in Sunshine.[1] The respondent, who owned and occupied the house, was inside together with a female friend. Very soon after the first attempt at entry, the respondent took up a loaded revolver, went immediately to the front hallway and fired two shots towards the front door and at least another three shots towards the window of the front room. There were police officers behind both the front door and the window.
[1]The entry was authorised by a warrant issued pursuant to the Drugs, Poisons and Controlled Substances Act 1981.
The respondent fled the premises, but subsequently handed himself in to police. Although he was initially charged with multiple charges of attempted murder, he pleaded guilty in the Trial Division of the Supreme Court to 14 charges of conduct endangering life[2] and one charge of possessing a firearm whilst prohibited.[3] He was sentenced to a term of five years and three months’ imprisonment, with a non-parole period of four years. The structure of the sentence is set out in Annexure A, at the conclusion of these reasons. In short, the base sentence was three years — three months were added by way of cumulation for each of the nine charges and the sentences on the remaining charges, including the firearms offence, were fully concurrent.
[2]Crimes Act 1958 s 22.
[3]Firearms Act 1996 s 5(1).
The Director of Public Prosecutions (‘Director’) has appealed the sentence on three grounds. They are:
Ground 1 —The total effective sentence, non-parole period and individual sentences are manifestly inadequate in all the circumstances of the case.
Particulars:
In fixing the sentences referred to above, the learned sentencing judge:
(a)Failed to have sufficient regard to the gravity of the offending, the particular context in which the offending was committed, namely, where police were fired upon in defence of a criminal enterprise, and the effect that the offending had upon those who were involved;
(b)Made orders for cumulation of 3 months on each of Charges 2–7, 9, 10 & 12, and permitted full concurrency on Charges 8, 11, 13–15, which, in combination with the sentence imposed on Charge 1, resulted in a total effective sentence and non-parole period that are manifestly inadequate in all the circumstances.
Ground 2 —The learned sentencing judge erred by failing to find in aggravation that the respondent must have been aware that the persons who were trying to gain access to the respondent’s premises were police officers acting in the course of their duty.
Ground 3 —The learned sentencing judge erred as a matter of principle by holding that in order for ‘aggravating circumstances’ to be established the Court had to be satisfied to the required standard that the respondent was ‘aware that the persons seeking to gain entry to the house were police officers’.
The act of firing the gun towards a door and window, knowing that there were people on the other side, was inordinately dangerous. In addition, there were a number of factors that, as the judge found, rendered the offending serious examples of the offence of reckless conduct endangering life.[4] It will be necessary to return to those features in assessing whether the Director is correct in her submission that the sentence is manifestly inadequate.
[4]R v Le (Unreported, Supreme Court of Victoria, Emerton JA, 3 October 2018) [23] (‘Reasons’).
However, a critical issue which underpins each of the three grounds of appeal is whether the respondent knew, before he fired the shots, that the people trying to gain entry to the house were police officers. The judge concluded that she was not satisfied, to the criminal standard, that the respondent knew that they were police.[5] By grounds 2 and 3, the Director seeks to overturn that finding or, in the alternative, to establish that the respondent ought to have known that they were police. It is said that this knowledge, be it actual or imputed, is a significant aggravating feature of the offending. Ground 1, which asserts that the sentence is manifestly inadequate, logically follows grounds 2 and 3, because resolution of it will depend on whether the judge’s findings as to the respondent’s knowledge survive.
[5]Ibid [31]–[36].
The respondent submitted that there is no error in the judge’s finding and that the proposed alternative state of knowledge, based on recklessness, was not advanced on the plea and should not be entertained on appeal. He contended that, on the findings made by the judge, the sentence was, when all matters are considered, within the permissible range.
For the reasons that follow, we would reject the challenge to the judge’s findings as to knowledge and to the sentence imposed. We will therefore dismiss the appeal.
These reasons will first set out the facts, then turn to consider the challenges comprehended by grounds 2 and 3 to the finding made by the judge about the respondent’s knowledge and finally address the contention that the sentence is manifestly inadequate.
The facts[6]
[6]The below summary of the facts has been drawn from paras 2–19 of the Reasons and the Summary of Prosecution Opening.
The police members in question were dressed in Clandestine Laboratory Squad overalls displaying the Victoria Police logo, bulletproof vests, helmets and gas masks. They carried .40 calibre Smith & Wesson handguns.
Each of charges 1 to 14 relates to conduct endangering the life of one of the police officers.[7]
[7]In the order in which they would approach the property (described as the ‘stack’), the police members were as follows: Glenn Kroezen, Peter Clarke, David Kerr, Brendan Riddell, Michael Kugler, Jeremy Renfrey, David Measham, Damien Dean, Grant Farley, Craig Poynder, Natasha Lonsdale, Joshua Down, Damien Simmons and Matthew Bettiol.
Having determined who would do what, the police members proceeded to the property, parked their vehicles nearby and approached the house on foot in single file, climbing over a small dividing fence into the front yard of the house. From there, most of the members moved on to the front porch that ran the length of the front of the house. The porch was initially in darkness, but as the first members approached the front door of the house which was centrally located, the porch light came on. Members started to yell, ‘Police, police, don't move.’
A police vehicle was brought in and parked across the driveway with its red and blue lights flashing and its siren activated. Police members immediately took steps to gain entry to the house at two points: through the front door and through a window to the left of the front door. To some extent, the house was fortified to prevent or impede any incursion. The front wire security door and the main door itself had been reinforced and the window was covered by a metal shutter.
Clarke and Kerr attempted to force entry at the front door using a Hux and a ram to remove the security door. They forced the security door open and Kerr began hitting the main door, which was reinforced with metal panels on the inside. While Kerr was hitting the door, he heard muffled gunshots from inside the house and saw fragments coming from the door. He felt something hit him on the right side of his jaw. He dropped the ram and yelled at Clarke that someone was shooting at them. They retreated.
Meanwhile, at the window, Measham and Farley had begun to remove the metal shutter that protected the window. The frame of the shutter gave way and the bottom half of the shutter was removed exposing half of the window. The right side of the sliding window was already open. Kugler instructed the police members to enter the house through the window. As the first police member, Renfrey, started to climb through the window, Kugler saw the respondent standing in the hallway holding a handgun and aiming it towards the front door. He heard a number of loud cracks and called out, ‘Shots fired, shots fired’.
Kroezen, who had been tasked with providing cover for those breaking in, also heard what sounded like gunfire and noticed that Kerr and Clarke were withdrawing from the front door of the house. He pulled Renfrey back out the window. Renfrey felt a really fast flick on the back of his vest as he retreated and Measham, who was still at the window holding the Hux, felt a sharp pain to his right arm just above the elbow. Dean observed two bullet holes in the window about one metre from where he was standing on the porch. Poynder felt a knock to his left hipbone.
In response to the gunfire, Kroezen rolled in front of the window from where he could see the respondent in the room holding a handgun. The respondent was seen moving out of the front room, back towards the hallway. Kroezen fired two shots at the respondent, who then retreated down the hallway and out the side.
In seeking to establish an evidentiary platform from which to infer that the respondent knew that the people outside the house were police, the Director relied, in particular, on the observations of Kugler, Farley and Down, as recorded in the Summary of Prosecution Opening. Those three police members were effectively behind the front door and, it was submitted, had a clear line of sight.
At the time the entry team were able to remove the shutter on the window, Kugler instructed police members to enter through the window. He was positioned at the edge of the steps to the porch. As Renfrey started to enter the window, Kugler had a line of sight through the window to the door to the hallway. He saw the respondent standing in the hallway holding a gun, aiming it towards the front door. He heard a number of loud ‘cracks’ and called out ‘Shots fired, shots fired’.
Farley also saw the respondent located near the door to the hallway just after Renfrey went to enter the window. He saw the respondent pointing the gun at the window and heard a number of shots.
Down was standing by the window as Kerr and Clarke were working on the front door. He saw those two police members move away from the door. He saw Renfrey enter the window and then being pulled back out. He heard someone yell ‘gun’. Through the window, he saw an Asian male, matching the respondent’s description, raise a gun and point it at the window where police were standing. He did not remember hearing gunshots at that time.
The respondent fled the house through the back door and over neighbouring fences. He gave himself up to police later that same day. The woman, who was in the house during the raid and had also run away, came out from under the house at about 5:00 pm in the presence of police.
The respondent participated in a record of interview with police. He told them he was in the kitchen at the rear of the house when he heard some banging on the front door. He saw someone trying to break in through the window. He ran to the bedroom to get the gun and fired a few shots ‘just in the air’. He said he ‘let one or two off’ but the persons trying to break in did not hear, so he had to fire one or two more. He did not see who it was because there was a torch shining at him. He denied aiming the gun and said he did not want anyone to get hurt. He said it was more like a deterrent. He said he was not familiar with using a gun, so did not know where he had shot.
He said he realised there were sirens after the shooting, but did not hear anyone yelling ‘Police, police’, because an ice-making machine and a fan were running in the kitchen.
The respondent told the police that when he saw someone breaking in through the front door and through the window, he thought he heard gunshots and that someone was breaking into the house. He said he was scared for his life and the life of his friend, and did not want them to come in.
A search of the crime scene found five .22 calibre bullets, one just outside the front door, one on the hallway floor, one out on the outside window ledge, one on the porch near the porch railing and one between the cushions of the couch in the front room. There was a bullet hole in the hallway cabinet, a bullet hole in the front door about 152 centimetres above floor level, two bullet holes in the front left window and damage to the front left window-frame. One of the bullets fired towards the window had ricocheted back to lodge between the cushions on the lounge situated against the back wall of the front room.
The judge summarised the ballistics evidence noting that two bullets were fired, at chest height, towards the front door. Only one of them hit and penetrated the door, the other hitting and passing through a cupboard that had been placed in the middle of the hallway. At least three bullets were fired towards the window, two of which went through the window and one ricocheted back into the room.[8]
[8]Reasons [14].
In relation to the position of the respondent, the judge noted that, at the time he discharged the bullets towards the front door, he could have been standing at any point along the hallway, including adjacent to the door of the front room.[9]
[9]Ibid [16].
In relation to the three bullets fired towards the window, the judge concluded that the respondent must have been standing somewhere between the doorway to the front room and the window when he fired the gun.[10] The two bullets that passed through the window ended up on the porch floor and the windowsill respectively. According to the ballistics analysis, they must have come into contact with something or someone outside the window.
[10]Ibid [17].
A six shot .22 calibre revolver was found hidden beneath the floor in the middle bedroom of the house. It contained six empty cartridge cases, three of which exhibited two strike impressions of similar force, indicating that pressure was applied to the trigger three more times after all six cartridges had been discharged.
Four police members sustained relatively minor physical injuries. Kerr received a small abrasion to the right cheek, which the judge found could have been caused by a projectile; Poynder reported tenderness over the left hip that showed no visible injury; Renfrey received a faint red mark, likely to be bruising, in the middle of his back; and Measham received a circular bruise just above the right elbow, with a graze abrasion that was possibly caused by a projectile in the presence of protective clothing.[11]
[11]Ibid [19].
Grounds 2 and 3 — the knowledge of the respondent
In the Summary of Prosecution Opening filed before the hearing of the plea, the prosecution alleged that the respondent knew the persons attempting to gain entry to his property were police, given the police vehicle was parked across the driveway with red and blue lights flashing, and the siren was activated; and a number of police members were yelling ‘police, police, don’t move’ at the front of the house as entry to the house began.
It was submitted that this constituted an aggravating feature of the offending. The prosecution opening referred to three decisions of this Court in support of that submission.[12]
[12]Phillips v The Queen [2017] VSCA 313; Bradley v The Queen [2010] VSCA 70; DPP v Arvanitidis [2008] VSCA 189 (‘Arvanitidis’).
Consistently with that submission, on the plea the prosecutor submitted that the respondent knew the persons attempting to gain entry were police. The prosecutor told the judge that whether the respondent knew they were police was a question of fact for the judge to determine and that it would need to be established beyond reasonable doubt before the judge could find aggravation.
The respondent answered that submission both in writing and orally. In writing, the respondent argued that the evidence did not permit a finding, beyond reasonable doubt, that he was aware that those seeking entry were police. He relied on the following matters. He had denied in his record of interview that he knew they were police. The short duration of the shooting meant that there was no opportunity for him to realise that the intruders were police between the time of the first shot and the final shot. In other words, the prosecution would need to establish that he was aware before he fired the first shot that they were police. He denied hearing anyone identifying themselves as police. It was said that the commencement of police yelling ‘police, don’t move’ was contemporaneous with, or very shortly after, the commencement of the use of the battering ram on the door, which may have made it difficult to hear what was being said.
The respondent also relied on the evidence of Kerr that ‘whilst hitting the door I could hear muffled gunshots. I wasn’t sure in my mind if it was gunshots or not, due to the noise going on with the police sirens and members yelling “police don’t move”’. Further, the evidence of the respondent’s companion, who was present in the house at the time of the execution of the search warrant, was that she heard a terrible noise outside and that she thought the house was being robbed. She said she did not hear the word ‘police’ before the shots were fired.
Finally, the respondent said that he ‘saw someone trying to break in’ and could not see properly because there was a torch shining in his face. He said that he had consumed some unidentified drug that may have affected his perception.
The judge noted that the issue of knowledge was a subjective one and it was for the prosecution to establish that matter beyond reasonable doubt.[13] Her Honour noted the respondent’s account that he had consumed drugs; the speed at which the events unfolded; and the respondent’s evidence that he ran to find the gun in the bedroom and that the first shots were fired from the hallway towards the front door, which was completely covered with metal sheeting.[14] The judge also noted that the surrounding noise was such that one of the police members trying to obtain entry was oblivious to the shots.[15] Finally, the judge noted the respondent’s account that he was blinded by the torch shining in his face.[16]
[13]Reasons [32].
[14]Ibid [33].
[15]Ibid [34].
[16]Ibid.
After recounting these matters the judge concluded:
I find it plausible that you did not see the police uniforms. It is also a reasonable possibility that you did not hear the warning shouts in the general commotion that must have prevailed. Although it is less likely that you did not hear the police siren or notice the flashing blue and red lights in the driveway this possibility cannot be excluded, especially given the short time frame in which the shooting took place.
Furthermore in the light of the activities allegedly being carried out in the house your account of who you thought was trying to break in is plausible. Although by your pleas of guilty you have eschewed self-defence as a reason for your conduct, I cannot exclude the possibility that you believed you were firing on intruders to deter them from entering the house. In my view the aggravating features are not established to the requisite standard.[17]
[17]Ibid [35]–[36].
Before going further, it is convenient to address the relevance of the respondent’s knowledge. It has been recognised in a series of cases in this Court that, where there are serious acts of violence directed to a person who the offender knows is a police officer acting in the course of his or her duty, such knowledge will be a significant aggravating factor.[18]
[18]Arvanitidis [2008] VSCA 189; Phillips v The Queen [2017] VSCA 313, [54].
In Arvanitidis, Buchanan JA said:
It is clear that generally it is an aggravating circumstance that the victim of a physical attack is a police officer acting in the execution of his or her duty. The purpose of sentencing offenders more severely because their victims are police officers is to deter others and thereby protect the police.[19]
[19][2008] VSCA 189, [4] (citations omitted).
To similar effect, Redlich JA observed in the same case:
It is a serious offence to assault police officers in the execution of their duty ordinarily requiring a significant element of deterrence in the sentences to be imposed. The courage of police officers in protecting lives and property is something upon which the community depends. It is incumbent on the Court to impose appropriate sentences to demonstrate support for the authority of police officers who undertake a difficult, and dangerous task in the execution of their duties in maintaining law and order ... Where the offender knows or ought to have known that the victim was discharging a public duty of this sort, a more severe sentence will usually be imposed to deter such persons from violent assaults on them when performing their duties.[20]
[20]Ibid [50] (citations omitted).
It may be noted that Redlich JA held the principle to apply where the offender knows or ‘ought to have known’ that the victim was a police officer. It is this proposition that forms the basis of the Director’s alternative argument, as reflected in ground 3.
In order to successfully impugn the finding of fact made by the judge, it is necessary for the Director to establish that the finding was not reasonably open. This follows from the fact that the present appeal is an appeal in the strict sense.[21]
[21]Willis v the Queen [2016] VSCA 176, [94] (Weinberg and Beach JJA), citing Carroll v the Queen [2011] VSCA 150, [16]–[18].
The Director submitted that the evidence of police officers Kugler, Farley and Down, to the effect that they had a clear line of sight of the respondent through the window at the time he fired the shots at the window, meant that the respondent must have seen the police officers were uniformed; heard their identifying warning and the car siren; and seen, either directly or by reflection, the red and blue flashing lights of the police vehicle that was stationed across the driveway.
Plainly, those matters provided a basis for inferring that the respondent must have known that those seeking entry were police. However, those matters did not stand alone. They had to be seen in a context where things were moving very quickly. It appears possible that the police commenced entry in response to the porch light illuminating before all of the officers were in position, and the noise of entry might have preceded any warning. Further, the respondent may well have been startled and confused by the noise and potentially affected by his consumption of drugs, so that his response in running for the gun and firing shots was undertaken in advance of any realisation that there were police outside. Given these matters and the shortness of time in which the events unfolded, we are not persuaded that the relevant finding of the judge should be overturned. In our view, the finding made by the judge was reasonably open to her.
Accordingly, ground 2 fails.
By ground 3, the Director submitted that the judge should have considered whether the respondent was reckless as to whether or not the incursion was being undertaken by police. It was submitted that there were only two plausible explanations for a forcible entry onto the premise: the entry was being sought by criminals in a run through or by police in the execution of duty. In those circumstances, it must follow that, at the least, the respondent must have turned his mind to the identity of those outside and to the probability that they were police. In other words, to use the formulation of Redlich JA in Arvanitidis, the respondent ought to have known that they were police seeking entry.
As already noted, this formulation was not advanced before the judge and her Honour had no reason to consider it. In essence, the Director submitted that the judge should have considered, and accepted, a submission of fact that was not put to her Honour. It was submitted that the alternative was ‘blindingly obvious’ and was included — as a matter of necessary implication — in the submission that the respondent knew that they were police.
In our opinion, the Director should not be permitted to run this argument for the first time on appeal. First, the approach taken by the prosecutor was set out in written and oral submissions, and was adopted advisedly. Secondly, the prosecutor specifically referred to the judgment of this Court in Arvanitidis and, if the point was to be run, the opportunity was clearly available on the plea. Thirdly, the submissions of the respondent were deliberately crafted to respond to the case advanced by the prosecutor. It would be unjust to require the respondent to meet a different factual case for the first time on appeal. Fourthly, it is relevant that this is a Director’s appeal. It is appropriate for the Director to be held to the position taken at first instance.[22] Fifthly, the respondent would be denied the opportunity to have the facts on this alternative formulation found by the judge, rather than for the first time on appeal.
[22]DPP v O’Neill (2015) 47 VR 395, 419 [93]; DPP v Majok [2017] VSCA 135, [42]; DPP (Cth) v Haynes [2017] VSCA 79, [60].
Consequently, we would reject ground 3.
In the circumstances, it is not appropriate for us to venture a view about the extent to which recklessness as to whether the victims are police officers, acting in the course of their duty, is an aggravating factor for an offence of violence. Beyond actual knowledge, there are a variety of circumstances in which the law holds a person responsible for that which they ought to have known. Some of those circumstances are caught by the concept of recklessness and in other contexts are described as constructive knowledge. In the present context, consideration of state of mind short of actual knowledge should await a case where it is properly raised and the underlying facts are found or agreed. That is not this case.
Ground 1 — manifest inadequacy
We now turn to consider whether, on the findings made by the judge, the sentence was manifestly inadequate. We note at the outset the proper concession by senior counsel for the Director, that the complaint of inadequacy would be much more difficult to make good if the challenge to the finding about lack of knowledge failed.
It is worthwhile emphasising the very serious aspects of the offending. There is no doubt that the contraventions of s 22 of the Crimes Act 1958 and the firearms offence were objectively serious.
First, firing multiple shots at a door and a window, knowing there are people behind, is exceptionally dangerous.
Further, it is relevant that the house, owned and occupied by the respondent, was being used for an illegal purpose. Although the respondent was not charged on the indictment with any drug offence and the Summary of Prosecution Opening did not contain any facts alleging that the house was being used for illegal activity, the respondent advanced his plea on the basis that his conduct was explicable because of the risk that the house might be attacked by criminals, having regard to the nature of the activities being carried on at the house.
Although counsel on the plea was somewhat elliptical about those activities, and the prosecution bore the onus of establishing aggravating features, in effect, the respondent sought to confess to the drug related activities in order to meet the graver submission that he knew the people attempting to gain entry to the house were police. In those circumstances, it is appropriate to have regard to the fact that the shooting was connected to illegal activity. This conclusion negates any possible contention that the respondent was engaged in any laudable protection of life or property.
In relation to the firearm offence, the judge regarded it as a reasonably serious example of the offence in question.[23] The respondent became a prohibited person three days before this incident, as a result of a conviction.
[23]Reasons [29].
In her reasons for sentence, the judge identified a number of matters that moderated, at least to some extent, the sentence. First there was little in the way of premeditation. Secondly, the offending was carried out over a very short period of time. Thirdly, the offending did not involve the use of a powerful weapon, with clean lines of sight towards any of the police members.
The judge noted the respondent was 35 years’ old at the time of sentence. The evidence as to his personal circumstances revealed that he is the second youngest of seven children and was born in Vietnam. He came to Australia in 1988 as a five-year-old with his mother and one sister. His family struggled financially and, although the respondent attended school, he did not complete year 11. Difficulties at home were such that he went into foster care for a period of time. However, he returned to school and completed VCE in 2002. The respondent has a patchy and limited employment history, and there was no information before the judge as to how the respondent spent the bulk of his time since leaving school almost 20 years ago.
The judge noted that the respondent had a limited criminal history, but that none of his previous offending involved violence.[24] The judge was prepared to infer remorse from the fact that the respondent handed himself in to police on the day of the offending and from his plea of guilty.[25] The judge concluded that the respondent had ‘just reasonable’ prospects of rehabilitation.[26]
[24]Ibid [44].
[25]Ibid [46].
[26]Ibid [48].
We have had regard to each of those matters.
The charges of endangering life and possession of the firearm arose out of a single transaction. Of course, there were multiple shots fired and there were a number of police officers in danger of being shot. Nevertheless, in considering the level of criminality, it is necessary to have regard to totality. Senior counsel for the Director submitted that it would have been artificial to charge the respondent with a single charge of reckless conduct endangering life, and identified the individual officers as persons whose lives were endangered. Equally, it would have been artificial to ignore the fact that all of the charges arose out of a single course of conduct that was committed over a very short period of time.
The form of the indictment necessitated selecting one of the charges of endangering life to be the base sentence and then considering what orders for cumulation should be made. There was no particular basis to select one of the charges as more serious than the others. It is almost certain that the shots fired towards and through the window were the most dangerous and it follows that perhaps Renfrey, Poynder, Kroezen, Farley and Measham were in the greatest jeopardy. Clarke and Kerr, who attempted to enter the door, were also at high risk, although the reinforcement on the door may have provided some protection.
On the other hand, those officers who were further away from the points of entry were, relatively speaking, in a better position. Little is gained from trying to assess the relative risks in respect of each charge. The structure chosen by the judge, of making the charge concerning Kerr the base sentence and then providing for three months cumulation on nine of the other charges, was open. Ultimately, whatever structure is chosen, it is imperative that the sentence adequately respond to the overall criminality involved.
Undoubtedly, the charge of possessing a firearm as a prohibited person is a serious one. The possession of loaded guns in the context of a criminal environment creates obvious risks.[27] However, in this case, where the respondent took up the firearm and a very short time later discharged it, some care has to be taken to avoid double punishment, given that the act of possessing and discharging the firearm was essential to the conduct that gave rise to offences of endangering life.
[27]DPP v Graoroski [2018] VSCA 332, [37].
We are not persuaded that the sentence was wholly outside the range open to the judge. The test we are required to apply in considering this ground is a stringent one.[28] This principle is not a relic of the traditional constraints on Crown appeals that have softened in recent times. Rather, it is a recognition that the sentencing discretion is a broad one and is reposed in the sentencing judge. The question is not whether the members of this Court would have imposed the same sentence, either in aggregate or in its individual components. This Court may only intervene on the basis of manifest inadequacy if it is wholly outside the range available to the judge.
[28]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; DPP v Karazisis (2010) 31 VR 634.
Although lenient, we are unpersuaded that the sentence is manifestly inadequate. Ground 1 fails. It follows that the appeal will be dismissed.
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ANNEXURE A
Charge on Indictment Offence Maximum Sentence Cumulation 1. Conduct endangering life (David Kerr) 10 years
(s 22 Crimes Act 1958)3 years Base 2. Conduct endangering life (Peter James Clarke) 10 years
3 years
3 months 3. Conduct endangering life (Jeremy Justin Renfrey) 10 years
3 years
3 months 4. Conduct endangering life (Craig John Poynder) 10 years
3 years
3 months 5. Conduct endangering life (Glenn Anthony Kroezen) 10 years 3 years 3 months 6. Conduct endangering life (David Matthew Measham) 10 years 3 years 3 months 7. Conduct endangering life (Brendan George Riddell) 10 years 3 years 3 months 8. Conduct endangering life (Michael Kugler) 10 years 3 years — 9. Conduct endangering life (Damien Thomas Dean) 10 years 3 years 3 months 10. Conduct endangering life (Grant Farley) 10 years
3 years 3 months 11. Conduct endangering life (Natasha Kay Lonsdale) 10 years
3 years — 12. Conduct endangering life (Joshua Down) 10 years
3 years 3 months 13. Conduct endangering life (Damien Simmons) 10 years
3 years — Charge on Indictment Offence Maximum Sentence Cumulation 14. Conduct endangering life (Matthew Bettiol) 10 years
3 years — 15. Possessing a firearm whilst prohibited
(s 5(1) Firearms Act 1996)10 years
(s 5(1) Firearms Act 1996)12 months — Total Effective Sentence: 5 years and 3 months’ imprisonment Non-parole period: 4 years Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 583 days 6AAA statement: 7 years’ imprisonment with a non-parole period of 5 years. Other relevant orders: Disposal Order
4
13
0