Director of Public Prosecutions v Shabani

[2019] VCC 2074

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01360

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELVIS SHABANI

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2019
DATE OF SENTENCE:	12 December 2019
CASE MAY BE CITED AS:	DPP v Shabani
MEDIUM NEUTRAL CITATION:	[2019] VCC 2074

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren	Office of Public Prosecutions
For the Accused	Mr P. Dunn QC with Ms Nadia Kaddeche	Galbally & O’Bryan

HIS HONOUR:

1Elvis Shabani, you have pleaded guilty to one charge of recklessly engaging in conduct which placed people at risk of death, and one charge of carrying a loaded firearm in a public place.  There is one charge of reckless conduct, but of course there were, indeed, four actual victims.  Those crimes each carry a maximum penalty of 10 years' imprisonment.

2You are now 38 years of age.  You pleaded guilty at a reasonably early opportunity.  Insofar as remorse is concerned I am sure that you wish you had not done it but insofar as the victims are concerned it is problematic.  I do give you the benefit of the doubt in that respect though.  Clearly, you get the utilitarian benefit of that plea of guilty.  A trial would have involved the calling of a number of people, some of whom, it would appear on the material that I have seen, would have been somewhat reluctant.  That would have been a difficult trial and you must get the benefit of that.

3You do have prior convictions, including some for violence.  There is a threat to kill from about 10 years ago, and an assault from earlier than that.  They are now somewhat remote in terms of time but show that you have been no stranger to the criminal justice system.  You do have a subsequent matter, which I will be referring to in a moment.

4You were 37 years of age at the time all this occurred.  At the time you were living with your wife, who was expecting your first child.  On the night of the offending you were staying at your mother's home in Thrice Lane in Kurunjang.  There victims were a Michael Williams, 20, a Harley Williams, 22, and Arnold Beck, 23, and Carly Quin, 19.  The Crown opening says that you and the victims were not known to each other.  It seems fairly clear from what Mr Dunn has shown me that at least one of the victims knew who you were, if nothing else.

5At approximately 10.30 pm on 17 October the four of them were at an address in West Melton and decided to go for a drive.  Mr Williams was in the car,
Ms Quin in the front seat, Arnold Becker and Harley were then seated in the rear passenger seat.  They were driving around randomly for a couple of hours.  There was another vehicle driving around at the same time, driven by Mr Jack Higgins, who apparently is Mr Williams' cousin.

6At some stage the group decided to drive to a, 'haunted house', located in Thrice Lane in Kurunjong.  As I understand it, that haunted house would appear to be the one that you were in fact in on that night.  They were in two cars.  You, I am told from the Bar table, and accept, had rung police earlier in the night because of the presence of the vehicles and hooting and things like that.  There is no independent confirmation of that, and I have really got no idea what those four people were doing, but in any event, I am satisfied that they posed no threat to you.

7At approximately 12.30 am Mr Williams parked his car in Thrice Lane on the opposite side of the road from your mother's address.  Whilst the car was parked there you came out on to a second story balcony and shone a torch at Mr Williams' car.  I am told by counsel it was a very strong torch.  A short time after that Mr Williams drove off, heading towards Centenary Avenue.  You then got into your own car and drove off in search of him.

8It is put on your behalf this was some sort of protective action.  It is very difficult to accept that.  This is a situation where when you spoke to police later on that night you said you were frustrated at police non-attendance.  You have gone in pursuit of these people with a fully loaded 357 magnum, which is a very powerful gun indeed.  What occurred after that would have been absolutely terrifying for each of these victims who, insofar as matter before me is concerned, posed no threat to you and were basically innocent kids.

9Mr Williams drove around the northern end of Melton before travelling east on to Centenary Avenue.  He approached a roundabout intersection of Palmerston Street at a round about 12.54 am.  At the same time you were travelling west along Centenary Avenue and arrived at the same intersection where you recognised his car.  Both cars remained stationary for a period of time before you placed your right hand indicator on.  That intersection has numerous residential premises situated on the south side of the intersection and north side has sporting ovals and facilities.

10You produced a .357 Magnum revolver in your right hand.  You placed your right arm out of the driver's side window of the car, pointing the firearm at
Mr Williams' car.  As both cars entered the roundabout from their respective directions you fired two shots, Mr Williams.  One of those shots certainly hit the car.  The other would appear not to have.  That gives rise to the reckless conduct endangering life of the four young people who were in that vehicle.

11Mr Williams, upon becoming aware of the fact that you were shooting at his car, sped off in an effort to get away from you.  You attempted to chase his car at high speed for a short time.  He apparently managed to elude you and attended at the Melton police station.  Whilst you were pursuing them Ms Quin called 000 to report the incident.  That incident is captured on closed circuit television but I have not viewed it.

12At approximately 1.10 am, that is within a quarter of an hour later, your vehicle was observed driving in High Street in Melton near the intersection of Station Road.  You were intercepted and pulled over.  You were arrested and you told the arresting police officer the firearm was in the centre console of your car.  The sergeant then arrested you, issued your caution and rights and you told police that you had discharged two rounds from the gun.  They conducted a search of your car and located a Sturm Ruger Security-Six 357 Magnum six shot revolver which was fully loaded with live ammunition.  That gives rise to Charge 2 of carry a loaded firearm.

13The situation is clear that after you had fired those two shots at these young people you must, and it being a revolver, you must have taken the time to fully reload the gun and one can only have one's suspicions about what that might have all been about.  In any event, you were then, when speaking to police, asked what it was about.  You expressed frustration to them, stating that you had called 000 multiple times earlier that evening in relation to people making noise and beeping car horns.  You stated that no police had attended in response to this and that you had heard a loud bang, which reminded you of being shot a year prior and of your brother passing away.

14As I said, Mr Williams' vehicle was examined by police and it had been struck by one round to the rear driver's side quarter panel.  You were tested for gunshot residue and it was found on you, on your clothes and in your car.

15A record of interview was conducted and you, as was perfectly your right, made a no comment series of answers to that.

16The offending is, in my view, extremely serious.  I do not accept that this was a protective action.  What you told the police was that it was frustration at police not attending when someone had been making noise and beeping their car horn.  You have clearly aimed at the car with a very powerful gun that could have easily killed one or more of the people within it.  Having done that, rather than back off you then endeavoured to pursue them and reloaded.  I simply repeat I think this is an extremely serious example of this sort of offending.  I have been shown comparative cases by the Crown that involve shooting and moving vehicles and the like and they point out pretty clearly how serious this has to be regarded.

17What occurred after all that was that some seven months later you, having been bailed and been on bail, were found by police in a motor vehicle and because you were travelling, apparently, at 160 kilometres an hour in a 60 kilometre zone you were intercepted, asked what you had on you and you produced a handgun.  You apparently had a loaded .38 revolver in your left-hand pocket.  That gun was loaded with five rounds.  A further search of you located a total of $10,000 in Australian currency.  I do not know what that was all about but you were given six months for it and you have in fact served that time and your bail in these matters was revoked, which gives you a limited amount of pre-sentence detention.

18Clearly, your involvement with the police back the previous year when you were charged with these matters had not deterred you from carrying a loaded firearm, and again I have indicated a number of times now I think there is a lot of things that have been going on in this particular matter that I am never going to know about, so all I can do is take into account that six months by way of totality, work on the basis that certainly being arrested for this had not taught you any lessons and it gives me concern in terms of what your attitude to all these matters might be.

19A number of sentencing propositions arise.  General deterrence is clearly important.  Specific deterrence is clearly important.  Denunciation and there has to be, obviously, an appropriate punishment.  A victim impact statement has been filed by Mr Williams.  There are matters in it which obviously I do not take into account but it is clear from that victim impact statement that he, and I would have thought the others, found this a very terrifying experience and he certainly is still suffering from the consequences of it.

20It was suggested a CCO might be available with that in terms of a combination but, in my view, a sentence involving a CCO would of necessity be manifestly inadequate.  Then, look, gaol is the only option, and significant gaol it must be.

21I then looked at matters personal to you, and very helpful documentation was provided by your counsel.  The first matter which I take into account is this.  At about the year prior to this occurring you were with your brother when he was, on the face of it, murdered by another man who will be facing trial early next year.  He was shot dead in your presence.  As I understand it, you suffered a gunshot wound yourself.

22I can accept, though there is no Verdins arising here and no psychologist material put before me, that you were, as Mr Dunn put, suffering from a heightened sense of anxiety and it is hard to know exactly what had been going through your mind.  What had happened though, was that your brother had been murdered.  Shortly after that your father had suddenly died and that left you as the senior male member of the family and you considered yourself the protector of the family.

23He pointed out that you have over the years always worked and have a good work ethic.  You now have a young son, who you are not going to see for quite some period of time.  I note, however, that at the time that the matter occurred with the loaded .38 your son had already been born and would have been at home, so as I say, there are a lot of things here I do not particularly know about.

24You are of Albanian/Macedonian heritage.  Your family came out here in 1986 when you were young.  The family grew up in St Albans.  Your father and mother both worked, your father in a factory and your mother as a seamstress.  It would appear that you were able to get through school.  From that time on you yourself have worked.  You and your brother were working together in a tyre fitting business and it was in those circumstances, as I understand it, that the shooting took place.  I do not need to go into that in any more detail.

25In 2007 you met your wife in Macedonia, married there and came to Australia.  Since you have been remanded and sentenced indeed on the other matter, your wife and infant child and mother live together in order to emotionally support each other.  They are experiencing financial pressures and I can understand that.  Unfortunately your conduct has brought that about.  I do accept in this sentencing process that there may well be a situation where you are put at risk in gaol because of giving evidence against the person who shot you, and I take that into account in a general sense, as just indicated in discussion with counsel.  It is not a situation where it is of real significance, but I do take it into account.

26I sentence on the basis that you will have a family to go to when you are ultimately released.  I sentence on the basis that you will find gaol more difficult because of your absence from your child and your absence from your family, bearing in mind your, which I accept, sense of responsibility and protectiveness towards them.

27Whilst in gaol, to your credit, you have done a very significant number or courses, more so than one usually sees.  That is, as I say, very much to your credit.  I have looked at some of the certificates in relation to that and it is a circumstance where you can, if you wish, use the gaol time in an endeavour to better yourself for when you are released.  The prospects of your rehabilitation are really up to you.  The risk of you reoffending if you continue the lifestyle that you have been living with firearms and the like prior to this has to be very high.  It has to be up to you whether you come out and continue to mix in this milieu or whether you get your life together, as I say, it is entirely a matter for you.

28In any event, as I have indicated already, this offending calls for a very significant sentence of imprisonment.  What I am going to do is, it seems to me, that the carry a loaded firearm should be consumed within a sentence for the reckless endangerment.  It is a bit hard to be shooting at people if you have not got a loaded gun.  So I will be making that totally concurrent, and as I think I have already indicated, I am taking into account the fact that you have done six months for the subsequent matter, and I take it into account in the sense of the totality as to how long you will have been in prison before you become eligible for parole.

29I direct that 25 days be reckoned as having been served under the sentence I am about to impose.

30On Charge 1, of the reckless endangerment, you are sentenced to be imprisoned for a period of four years.  On Charge 2, 18 months.  That is to be concurrent with the sentence imposed on Charge 1, giving a total effective sentence of four years.  I direct that you serve a minimum term of two years and six months before becoming eligible for parole.

31Pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of six years with a minimum term of four.

32No other orders I need to make?

33COUNSEL:  No, Your Honour.

34MS WARREN:  Your Honour did the forfeiture.

35HIS HONOUR:  No, thanks, Mr Dunn.  Thanks, Ms Warren.  Yes, thanks.

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