Director of Public Prosecutions v Quinn

[2022] VCC 1834

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00678

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL QUINN

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JUDGE:	JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September & 18 October 2022
DATE OF SENTENCE:	28 October 2022
CASE MAY BE CITED AS:	DPP v Quinn
MEDIUM NEUTRAL CITATION:	[2022] VCC 1834

REASONS FOR SENTENCE
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Subject:Criminal law - Sentence

Catchwords:              Plea of guilty to one charge of conduct endangering life – discharging a firearm in the direction of a reversing vehicle endangering life – rolled up charge reflecting endangerment of two victims in vehicle – history of harassing conduct by victims - belief the accused was acting in self-defence – such belief not reasonable – diagnosed PTSD following military service – application of Verdins’ principles to reduce moral culpability and the need for the sentence to operate as a general deterrent to others – burden of imprisonment – guilty plea and utility of plea – no prior criminal history and previous good character – very good prospects of rehabilitation – general deterrence, albeit moderated, and just punishment relevant sentencing considerations – specific deterrence has some role to play – community correction order with conditions

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:R v Verdins (2007) 16 VR 269; DPP v O’Neill [2015] VSCA 325; Boulton v The Queen [2014] VSCA 342

Sentence:                  Two year community correction order with conviction.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Teo	Office of Public Prosecutions Victoria
For the Accused	Ms N Smith and Mr M Radzaj	Victoria Legal Aid

HER HONOUR:

1Michael Quinn, following a sentence indication given by me,[1] you have pleaded guilty to a charge of recklessly engaging in conduct endangering life contrary to s 22 of the Crimes Act 1958 (‘the Act’), the maximum penalty for which is 10 years’ imprisonment.

[1]        Sentence indication hearing held on 12 September 2022.

2This offence arises from the events of 27 September 2019 when you fired a shotgun, believing you were acting in self-defence, at a black Mercedes sedan occupied by Charlie Wilson and an associate of his, Ryan Beves, after they attended at your Ringwood address. At the time of this incident, you were aged 55. You had no prior criminal history.

Background to the offending

3The background and circumstances of your offending are outlined in the Summary of Prosecution Opening dated 29 July 2021, which is the agreed basis upon which you are to be sentenced. Further background to the offending was detailed in the submissions made on your behalf on the plea. The prosecution does not dispute the additional background material to which I was referred on your behalf.

4Both you and Mr Wilson are military veterans. Approximately 18 months prior to these events, you had developed a friendship through your mutual involvement in a veterans’ association, known variously as the ‘Aussie Veterans’ Opportunity Shop’ and the ‘Australian Peace-keeper and Peacemaker Veterans’ Association’.

5However, by July 2018, your relationship with Mr Wilson had begun to sour over ongoing disputes about the way in which the Association was run, including its financial management. This, in turn, led to a series of harassing calls being made to you and another male, David Menz by both Mr Wilson and Mr Beves between September 2018 up until the date of the offence. During those calls, the frequency of which increased in the months leading up to these events, derogatory and sexualised comments were directed at you and your wife, including unfounded allegations of paedophilia.  By June 2019 you were receiving up to 40 to 50 calls each Friday and Saturday night, [2]  the nature of which had escalated into threats to attend your house and to bring a gun.[3]

[2]Cross-examination of Mr Charlie Wilson at Committal on 1 April 2021, depositions p 414

[3]Exhibit 5 - Brief of Evidence in the matter of Police v Charlie Wilson

6Arising from their involvement in this conduct, both Mr Wilson and Mr Beves were charged by police with using a carriage service to harass you and Mr Menz, for which they were both sentenced in the Magistrates’ Court.[4] Mr Beves did not know you personally at this time. His involvement with you and Mr Menz arose from the harassing calls facilitated by Mr Wilson.[5]

[4]On 3 August 2020, Mr Wilson was fined an aggregate of $7500 for charges of using a carriage service to harass. Mr Menz received a s 19B bond without conviction on 21 March 2022 for this offending.

[5]Exhibit 5 - Brief of Evidence in the matter of Police v Charlie Wilson

Circumstances of offending

7From around 6.12pm on 27 September 2019, Mr Wilson and Mr Beves began calling you persistently using your wife’s mobile phone number. During those calls, you were each abusive and derogatory of the other. During one of those calls, Mr Wilson accused you of being “a fraudster who rips off veterans” and that you “[took] the money out of the op shop”  to “top up your super”. Mr Wilson called you a “low life”. After you hung up, a recording of the call captures Mr Wilson telling Mr Beves, “Let’s go see him”. Mr Wilson then phoned you back, stating, “Are you home, fuckwit or what?”[6]  The calls culminated in Mr Wilson stating that he was coming to your address in Ringwood to sort out the dispute.

[6]Exhibit 5 – ibid.

8At 8.50pm, Mr Wilson, together with Mr Beves and his step-daughter Alexis Milone, left his address in Werribee and drove to your Ringwood address in a black Mercedes sedan. CCTV footage depicts the Mercedes arrive and park in the street in front of your address at around 9.40pm.

9Mr Wilson called your wife’s mobile phone stating that he was parked at the front of your property. He sounded the car horn and called out for you to come outside. Mr Wilson saw that the front lights of your property come on as you appeared at the front door. Mr Wilson got out of his car and called for you to come outside but you did not respond and turned off the front lights. Mr Wilson then returned to his car and drove it to face the front gate, with the headlights facing up the driveway to illuminate your house. He parked there.

10Mr Wilson then saw you walk down the driveway towards the black Mercedes and open the front gate. You gestured for Mr Wilson to come onto your property. At this point, Mr Wilson and the occupants of his car observed that you had a firearm in your possession. CCTV on the property captures you at the gate with the butt of a firearm sticking out from the back of your pants.

11Mr Wilson immediately placed the Mercedes in reverse and began to drive away from your property in a westerly direction. The victims saw you pull out a ‘sawn off, double-barrel’ shotgun and point it directly at the car. As the car was driving off, you shot twice at the Mercedes, with one round impacting the front passenger side door of the vehicle. This is the conduct that gives rise to the charge of  reckless conduct endangering life. The charge is a ‘rolled up’ charge reflecting the fact that your reckless conduct in discharging the firearm endangered the life of both Mr Wilson and Mr Beves. You are not charged with endangering the life of the other occupant of the car, Ms Milone.

Arrest and interview

12After Mr Wilson called 000, you were arrested at your Ringwood property by the police Special Operations Group at 2.50am on 28 September 2019. The police operator had been advised by Mr Wilson that you had set up a “man-trap at the property” which would discharge nails upon entry.[7] At the time of your arrest, three bean-bag rounds were discharged by the Special Operations Group, striking you in the back with force and causing extensive bruising.[8] No man trap was found.

[7]Statement of police witness, operator 1`68, depositions page 34.

[8]Exhibit 8 – photographs of bruising taken of the accused following arrest

13Upon your arrest, you were asked if you had a ‘sawn-off’ shotgun at the house, which you denied. A search warrant was executed and the CCTV hard drive was seized, however no firearm was located. The police were unable to view any footage stored on the device after July 2019.

14You were interviewed by police on 28 September 2019.

15Subsequent analysis of gunshot residue obtained from a swab of your hands revealed the presence of gunshot particles. Further analysis confirmed that the damage to the front passenger side of the Mercedes sedan was related to the discharge of a firearm.

16On 18 October 2019, investigators were able to recover the CCTV footage which captured the entire incident on 27 September 2019.  On 23 October 2019, the police executed a further search warrant at your address and seized some of the items of clothing you were seen wearing in the CCTV footage. Forensic experts reviewed the footage and were of the opinion the firearm observed in your possession that night was a ‘sawn off break open double barrel’ shotgun, which discharged conventional cartridge ammunition. The ballistics experts concluded that the discharge of a shotgun in the circumstances that arose that evening carried with it a risk of serious injury.

17You were interviewed again by police on 23 October 2019. During that interview, you told police that approximately one week after the incident you used an industrial saw to cut the firearm into pieces and disposed of these pieces in an industrial bin at the back of the Op Shop in Boronia. The firearm has never been recovered.

Nature and gravity of offending

18I turn now to discuss the nature and gravity of your offending.

19Plainly, an offence involving the discharge of a firearm endangering the life of another is inherently serious. The seriousness of the offence of reckless conduct endangering life can be gauged from the maximum penalty of 10 years’ imprisonment applicable to it. Here, you have pleaded guilty to the offence as a rolled up charge, reflecting the fact that your conduct in discharging the firearm endangered the life of not one, but two victims. Although the offence carries the one maximum penalty, the sentence I impose must reflect the totality of the harm caused to the two victims by your conduct.

20I consider it to be an aggravating feature of your offending that you fired in the direction of the vehicle, not once but twice, as it was reversing away from your property. Although no victim impact statements were relied upon, there is no doubt that this must have been a terrifying ordeal for the victims. It would also have been a frightening experience for Mr Wilson’s step-daughter who was also present in the car, although I accept you had no knowledge of that fact at the time.

21In determining the degree of criminality associated with your conduct, it is appropriate to have regard to the circumstances in which you discharged the firearm.

22In the lead up to this offending, you and your wife had been subjected to persistent harassment by the victim, Mr Wilson. This campaign of harassment had endured over a period of many months, including threats to attend your house, with a gun. These harassing calls continued on the night of the offence, culminating in the attendance of Mr Wilson and Mr Beves at your home late at night. Through your association with Mr Wilson, you were aware he had previously been convicted for discharging a firearm at another person, over a dispute regarding greyhound racing, in 2017. You report that in the calls made to your house that night, Mr Wilson said words to the effect, “You are going to know what it is like to have a gun pointed at your head again”.[9]

[9]Submissions of defence dated 14 October 2022, at paragraph [26].

23This is important context to your offending that night. This is not an example of planned or premeditated offending on your part. Nor is it a case where you initiated the confrontation with the victim. To the contrary. I accept that at the time Mr Wilson attended your property, you held a belief that he was armed in some way and was intending to confront you, following months of harassment. This was an emotionally-charged encounter and your decision to discharge the firearm was made at the spur of the moment. However, by the time you discharged the firearm, the victim was reversing the car to leave your property. Any belief that discharging the firearm at that point was necessary to defend yourself could not be said to be reasonable.

24You acted recklessly when you did so. By your plea, you accept that you foresaw that an appreciable risk to the safety of the two victims was a probable consequence of your conduct, but went ahead regardless. I accept however, that the circumstances in which you discharged the firearm makes this a less serious example of this offence.

25Your moral culpability for the offending is also informed by your personal circumstances, to which I now turn.

Personal circumstances

26It is a significant fact that you fall to be sentenced for this offence as a 58-year-old, first-time offender. You have no prior criminal history and you have not been charged with any other offences since you were arrested for this matter in 2019.

27You were born in April 1964 and are one of five siblings, having two older brothers, an older sister, and one a younger sister. Your parents were happily married for 50 years, and you enjoyed a stable childhood growing up in Box Hill. Your mother was employed as a dental technician and your father was a farmer and later worked as a homicide detective with Victoria Police. You attended St Johns Primary School and completed secondary schooling to Year 10 at Ringwood High School, where you were actively engaged in sport.

28After leaving school at the age of 15, you worked as an assembler and turner before joining the Army when you were 16 years old. Between July 1981 and 2002 - a period of 17 years - you served as a member of the Australian Regular Army. For the first few years you worked in the signals corps. When you were based in Darwin between 1987 and 1989 you were promoted to the position of Corporal working in signals intelligence.

29In 1991, having completed your sergeant training, you were deployed to Cambodia as a Detachment Commander. You were ultimately promoted to the rank of Warrant Officer Class One. It was whilst you were in Cambodia that you were held under house arrest for a period of three months in a remote area known as Pailin, near the Thai border. Your experience of being detained for those three months is detailed in the report of your treating psychiatrist, Mr Gelb dated 8 September 2022:

In 2011, Mr Quinn was referred to me by his GP for assessment and treatment of Post-Traumatic Stress Disorder. Mr Quinn suffered from severe Post-Traumatic Stress Disorder as a result of his deployment to Cambodia as an Australian Defence Force soldier. During this deployment, he was captured and illegally held prisoner for three months by Khmer Rouge forces in a remote village, where his life was threatened on a daily basis and from which survival was no means certain. Numerous, highly traumatic incidents occurred during this period.

30You were assessed for the purposes of the plea hearing by psychologist, Ms Gina Cidoni on 15 and 19 September 2022. In her report dated 12 October 2022, Ms Cidoni expands upon your experiences in Cambodia, stating:

He was exposed to war horrors during his deployment to Cambodia from 1991 to 1992…[h]e spent a 3-month period in captivity under military guard followed by 4 months of partial freedom where he was still held captive. There were also occasions where he had a gun held to his head and witnessed landmines explode…he witnessed a mother beg on the street with her deceased child in her arms. He recalled two incidents where he was almost executed on the street whilst in active service and was saved by others.

31You struggled with undiagnosed post-traumatic stress disorder (‘PTSD’) for over a decade following your return to Australia.[10]

[10]Exhibit 7 – Psychiatric report of Dr Gelb dated 8 September 2022

32You have had two significant relationships in your life. At the age of 22, you married your first wife, with whom you have two daughters, Jessica and Tracey, both of whom are now adults. Your relationship with your first wife ended upon your return from Cambodia.

33You met your current wife, Fiona, in the Army where you were both Corporals. You married in April 1995 and your wife remains supportive of you. Together you have a son, Jake, now aged 25.

34At the age of 38, you left the Army and subsequently worked in administrative positions and ran your own building business. After leaving the army, you became actively involved with veterans groups on a voluntary basis, becoming Secretary of the Australian Veterans’ Association. In 2015, you were Chair of a working group contributing to the Royal Commission into Veterans’ Suicide, contributing to the work of the Royal Commission. You are now Chair of the National Veterans’ Advisory Group working to deliver the recommendations of that Royal Commission.

35In 2004, you qualified to become a volunteer advocate assisting veterans with their claims to the Department of Veterans Affairs. You regularly appear in various tribunals in this capacity.

36You and your wife have also been actively involved in the Vietnam Veterans’ Association of Victoria Op Shop, and expanded its operation to include a second opportunity shop and a Veterans Advocacy Centre.

37On your plea, two character references were provided on your behalf by former veterans, Mr Kevin Ryan and Mr Don Carmichael OAM.[11] Both attest to your work as an advocate on behalf of veterans. Mr Ryan states that as Chair of the Royal Commission working group, you were ‘instrumental’ in highlighting the urgency of the issue of veteran suicide. Mr Ryan describes you as ‘a true and trusted friend’ who ‘goes out of his way to help those in need’. He describes your offending as out of character. Mr Carmichael similarly states that you have been ‘the driving force’ in raising funds and awareness of veteran suicide in Australia and says you are a caring, highly-respected individual. Both references reflect on the stress you and your family endured due to the ‘unrelenting, baseless accusations’ being directed at you by the victim in the lead up to these events.

[11]Exhibit 9

38I accept that you are a person of previous good character, one who has served your community through many years of military service and in subsequent years, volunteering much of your time to advance the interests of veterans.

Mental health

39The nature and extent of your diagnosed PTSD is comprehensively outlined in the psychiatric report of Dr Gelb and Ms Cidoni’s psychological report.

40Dr Gelb is a consultant psychiatrist who specialises in veterans’ mental health. He has treated you for PTSD since 2011, for which you are prescribed various medications. Dr Gelb states that PTSD is a chronic condition, which is rarely ‘cured’, and can ‘be triggered by a wide variety of stress-inducing’ events. He states:[12]

These triggers are frequently related to the veteran’s perception of threat, regardless of objective analysis of actual threat.

[12]Exhibit 7, ibid.

41Dr Gelb reports that you have been hospitalised in the past following acute exacerbation of your PTSD and that you have been attended by community based CAT teams on at least twenty occasions, including attendances to respond to threats of suicide.

42Having conducted psychometric testing, Ms Cidoni confirmed a diagnosis of PTSD, together with a generalised anxiety disorder.[13] In her report, Ms Cidoni records that you began to struggle with alcohol dependency upon your return to Australia from Cambodia, consuming a bottle of whisky daily around that time. You advised Ms Cidoni you now consume a bottle and a half of wine daily. Ms Cidoni also diagnosed you with an alcohol abuse disorder. As to the effect of you PTSD, Ms Cidoni opines:[14]

His profound mental illness impacted his capacity to respond functionally to stressors. His symptoms cause him to experience high distress, anxiety, and disturbed thoughts and to react to situations in unhelpful ways. At these times he demonstrates an altered perception of himself, others and reality. These inner experiences result in impulsivity and intense dysregulation.

[13]Exhibit 1 – Psychological report of Ms Gina Cidoni dated 12 October 2022, paragraph [78]

[14]Exhibit 1 – ibid, at paragraph [79]

43An offender’s impaired mental functioning can be relevant to sentencing in a number of ways:

(i)the condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances, and denunciation is less likely to be a relevant sentencing objective;

(ii)the condition may have a bearing on the kind of sentence that is imposed, and the conditions in which it should be served;

(iii)whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence, or both;

(iv)whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the same conditions;

(v)the existence of the condition at the date of sentencing may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; and

(vi)where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

44These considerations are referred to as the Verdins principles. Verdins principles may operate so as to moderate the appropriate sentence to be imposed. For the first four limbs enunciated in Verdins to apply, there ‘must be a connection between the impairment to mental functioning and the [offender’s] moral culpability or the need for general and specific deterrence’.[15] If the mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending.[16] It must be established that the mental impairment affected the offender’s ability ‘to appreciate the wrongfulness of the conduct’; or to make calm and rational choices or to think clearly at the time of the offence.

[15]DPP v O’Neill [2015] VSCA 325 at [74]

[16]Ibid

45In this case, your counsel argued that your moral culpability and the need for the sentence to operate to deter others was moderated on the basis that all of the Verdins principles apply based on the expert opinions of Dr Gelb and Ms Cidoni. At the plea hearing, defence counsel accepted there remained a need for the sentence to operate as a specific deterrent. With this concession, the prosecution accepts the application of the other Verdins principles to your case.

46Dr Gelb, in his psychiatric report, details the contribution made by your diagnosed PTSD to your offending behaviour on the night, stating:[17]

Having extensively discussed and worked through the antecedents to his offending, the offending behaviour and his accompanying Mental State, I have concluded that his actions were consistent with severe PTSD-related threat response to what he perceived as a life-threatening situation, contributed to by a lengthy period of distress, due to frequent harassment he was experiencing at the hands of [the victim], who was obsessed with Mr Quinn in an extremely unhealthy and dangerous manner.

[17]Exhibit 7, at page 3

47In Ms Cidoni’s psychological report, having first discussed the impact of your profound PTSD which she states led you to experience high levels of distress and anxiety, Ms Cidoni opines the following as to your offending behaviour:[18]

In his description of events, it was apparent there was a loss of contact with reality where he seemed to relive a traumatic episode leading to innate biological responses of fight and flight. In situations of extreme stress, normal response systems can quickly break down, causing the extreme behaviours in evidence. It was clear to me that at the point where Mr Quinn believed he was vulnerable and under attack he regressed immediately into combat mode resulting in extreme behaviours.

[18]Exhibit 1, at [80]

48In light of the analysis of Dr Gelb and Ms Cidoni, together with the factual background and circumstances leading to your offending, I have come to the following conclusions.

49Following your traumatic experiences whilst deployed to undertake military service in Cambodia, you experienced significant symptoms of PTSD that went untreated for a decade. Your diagnosed PTSD has variously been described as profound and severe. It is a persisting mental health condition, that in the opinion of the experts causes you to experience significant distress and anxiety when confronted with stressful events.

50Your mental health condition results in you acting in a way that is both impulsive and dysregulated in confrontational situations. It is in the context of your pre-existing PTSD and diagnosed anxiety disorder, that you experienced persistent harassment in the months leading up to and on the day of your offending, directed at you and your wife by Mr Wilson. I am satisfied your belief that you needed to act in self-defence when Mr Wilson attended at your property was genuine. It was not however, a reasonable or reasoned belief. I accept that underlying this belief was your mental health condition which interferes with your ability to engage in clear reasoning and decision-making.

51I am satisfied that your severe PTSD was causally connected and contributed to your offending behaviour, thereby reducing your moral culpability for your actions. In such circumstances, the need for your sentence to operate as a general deterrent, that is to send a message more directly to others, is moderated.

52I am well satisfied that there is an evidentiary basis for accepting that the relevant principles in Verdins case have been engaged.

Other matters in mitigation

53There are a number of other matters that are relevant in mitigation of the sentence I impose.

54First and foremost is your plea of guilty. By doing so, you saved the court and the community the cost and time associated with a trial. The plea indicated you were prepared to facilitate the course of justice. And, as the Court of Appeal stated in Worboyes and a number of other cases, the utilitarian value of a plea of guilty is greater where, as here, it is entered at a time when the court is facing a backlog of trials in the wake of the COVID-19 pandemic. You are therefore entitled to and will receive a significant sentencing discount for your guilty plea to the charge.

55However, beyond the indication of remorse implicit in your plea, there is no material before me to indicate that you are genuinely remorseful for your conduct. I consider you are yet to fully appreciate the risk your conduct posed to the victims. There is a need for the sentence to specifically deter you into the future.

56Secondly, the fact that at 55 years of age you had no criminal history of any sort is a significant sentencing consideration. I find you have been a person of good character who has served the community in many capacities; first through your many years of military service and more recently through your varied voluntary work for veterans. Those who have known you well for a long time, reflect on you as a caring, hard-working and widely-respected individual for whom this conduct is out of character. This lapse, though a serious one, would, as suggested by your referees, seem to be out of character.

57Since this offending in September 2019, you have not offended subsequently and have no charges pending. At the age of 57, you are entitled to a sentencing discount to reflect your previous good character and my conclusion that this offending was, indeed, out of character.

58I turn now to your prospects of rehabilitation. You have a strong work ethic, a history of military and community service and strong family support. The support of your family has been demonstrated by many family members attending and following these proceedings with interest.  In my view, your prospects of rehabilitation are very good, provided you continue to engage in specialist counselling for your mental health.  In this regard, Ms Cidoni recommends intensive treatment for your PTSD, and notes that the veterans’ PTSD program run by the Austin Hospital may be of assistance. To your credit, you have engaged previously with Dr Gelb, who states you have made significant progress with your treatment for PTSD to reduce the risk of you responding to confrontational situations with violence.[19]

[19]Exhibit 7, at page 3.

59Although there is no evidence that you were alcohol-affected at the time of this offending, given your history of alcohol abuse it is also important that you engage in appropriate treatment to manage your alcohol abuse disorder.

60Finally, I accept that your mental health condition would make the burden of imprisonment greater for you than for others. I also accept that there is a serious risk that imprisonment could have a significant adverse effect on your mental health. This conclusion is informed by the opinion of Ms Cidoni, who states:[20]

Prison will intensify his mental illness symptoms…the stress of imprisonment could progress its development. As PTSD is a condition that arises from severe trauma and intense stress, imprisonment could intensify this condition that has dominated his life for a long time…

He would not have the level of treatment required to successfully reduce his debilitating symptoms and the long-term outcome is continued maladaptive thoughts that lead to unhelpful behaviours…He lacks positive coping resources. Outbursts of anger as a function of PTSD can lead to problems in this setting and mental deterioration.

The long-term effect of lack of treatment and living in a high-stress environment like prison is a worsening of his mental state and trajectory.

[20]Exhibit 1, at [85], [86] and [87]

61In light of this material, I am satisfied that limbs 5 and 6 of Verdins also apply in my consideration of your sentence.

Other relevant sentencing considerations

62Given the nature and seriousness of this offending, and even allowing for a moderation of their significance given the application of Verdins principles, the sentencing considerations of general deterrence and just punishment remain of relevance to your sentence.  Others must still be deterred from resorting to the use of firearms given the risks inherent in their use. Community protection is another relevant consideration, but given your lack of priors and my finding regarding your positive prospects of rehabilitation, is not a prominent sentencing consideration.

63As stated, specific deterrence also remains of some relevance to the sentence I am to impose.

64At your plea hearing, Ms Smith who appeared on your behalf submitted that a custodial term was not necessary to meet the sentencing considerations to which I have referred. Rather, it was submitted that a lengthy community correction order (CCO) could achieve these objectives, whilst still promoting your rehabilitation through ongoing mental health counselling and treatment. Mr Teo, who appeared for the prosecution, agreed with the defence submission that a CCO was an appropriate disposition in the circumstances of this case.

65In the guideline judgement of the Court of Appeal in Boulton[21], it was recognised that a CCO is intrinsically punitive, stating:[22]

… a CCO  may be suitable even in cases of relatively serious offence which might previously have attracted a medium term of imprisonment.

[21]Boulton v The Queen [2014] VSCA 342

[22]Ibid, at [57]

66Although this was serious offending, in my view there are powerful mitigating factors which operate to moderate the sentence to be imposed. Section 5(4C) of the Sentencing Act 1991, expressly prohibits a court from imposing a sentence of imprisonment unless it consider that the purpose or purposes for which a sentence is imposed cannot be achieved by a CCO. I agree with the joint position of the parties that a lengthy CCO, with appropriately fashioned conditions, is capable of satisfying all relevant sentencing objectives in your case.

67I have had you assessed for a community correction order and you have been found suitable, although I note the reservations of Corrections regarding your insight into your offending. For that reason, I agree you should be assessed for and participate in offence-specific programs to address future risk, in addition to other conditions, under the CCO.

68On your behalf, it was submitted that such a disposition should be made without recording a conviction. In support of that submission, it was argued that a conviction may impact on your ability to undertake ongoing voluntary work with veterans’ associations. No material was filed in support of that submission, and there is no evidence that such an outcome is more than speculative. Given the serious nature of your offending, notwithstanding the matters in mitigation, I consider a conviction is warranted.

Sentence

69Balancing the matters to which I have referred, whilst having regard to the maximum penalty for the offence, you are convicted of the offence of reckless conduct endangering life and sentenced to a community correction order of two years’ duration.

70In addition to the mandatory conditions, I attach the following special conditions:

(a)   Supervision;

(b)   150 hours of unpaid community work;

(c)   Mental health treatment and rehabilitation;

(d)   Alcohol treatment and rehabilitation; and

(e)   Programs to reduce reoffending.

71To promote and preference your ongoing rehabilitation and mental health treatment, I direct that up to 50 hours of any mental health or alcohol treatment undertaken by you may be credited towards your unpaid community work.

72The length of the order I have imposed is designed to maintain your support in the community, thereby fostering your prospects of rehabilitation and the community protection which will naturally follow.

73In addition to the conditions I have imposed there are standard conditions. First, and foremost you must not commit any other offences punishable by imprisonment during the two year order.  You must report within two working days of your release to the nearest community corrections office.  You are required to advise your supervising corrections office of any change of address where you are living and working and you must do so within two clear working days.  It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer.  You are not able to leave the State of Victoria without prior permission of your supervising corrections office.

74You should be aware that the order can be breached if you do not comply with it in terms of the conditions or if you re-offend whilst it is in place.  If you do, you may be charged with breaching the order. You could then be sentenced for breaching the order and can be resentenced on the charge of conduct endangering life.