Director of Public Prosecutions v Sulemani
[2024] VCC 2077
•17 December 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01868
AP-22-0190
Indictment No. P11719815
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALBERT SULEMANI |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 November 2024, 13 Dec 2024 |
DATE OF SENTENCE: | 17 December 2024 |
CASE MAY BE CITED AS: | DPP v Sulemani |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2077 |
REASONS FOR SENTENCE
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Catchwords: Conduct endangering serious injury (driving), prohibited person possess firearm, use firearm to discharge into premises, car theft, possess various drugs of dependence (rolled up) - Summary offences: drive whilst disqualified x3, unregistered motor vehicle, possess ammunition, use fraudulent label and failure to provide assistance to access data - 30 years old at time of offending – sizeable enough criminal history - Guilty plea – Remorse - Breach of CCO - Offences occurred whilst on a CCO imposed in appellate jurisdiction.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Paganis | Office of Public Prosecutions |
For the Accused | Ms S Seoud (at Plea) Mr A Taleb (at Sentence) | Theo Magazis & Associates |
HIS HONOUR:
1Albert Sulemani, you have pleaded guilty to five charges laid on the indictment filed in this court. Those charges are one charge each of conduct endangering serious injury, being a prohibited person in possession of a firearm, use of a firearm to discharge at premises, car theft and possession of various drugs of dependence. That last charge rolls up a number of drugs and I will scarcely mention it again. It is the least of your concerns.
2There are also a number of related summary offences to which you have pleaded guilty, they are: three charges of drive whilst disqualified, driving an unregistered motor vehicle, possession of ammunition, use of a fraudulent registration label and failure to provide assistance to access data.
3The offending occurred back in August 2023. The summary placed before me sets out the procedural history of the matter before the courts. On 2 November 2023 at the Melbourne Magistrates Court, you were committed to this court for a plea that was listed on 30 April 2024. That date was vacated with a need for reports, plea materials and funding issues cited in support of that defence adjournment application. A fresh date was obtained for the plea to be conducted on 31 July. There was a fresh adjournment application on that date and the plea was further adjourned to 13 November. Despite this court being advised in September that the plea was ready to proceed, yet again on that November date, when the matter was called on, this time before me, there was a further defence adjournment application made this time by Ms Seoud. I had you arraigned and relisted the plea for the 13 December. The plea proceeded on that day, so last Friday, and I continued your remand in custody to be sentenced today.
4You are now 31 years of age and have admitted a criminal history of some relevance to my task. You were on a community corrections order at the time you committed the indictment offences - in fact two such orders. I placed you onto one of those orders on 1 March 2023 having allowed your appeal against a prison sentence imposed at the Dandenong Magistrates Court. So within a handful of months you were driving in disobedience of the court imposed licence order, endangering serious injury by an act of driving and discharging a loaded firearm through the front door of a unit.
5You have now run out of chances, as is conceded by your counsel.
6The summary sets out the offence maximum penalties.
7I was told by Ms Seoud, your counsel, that it is an agreed summary
8There is no point then in my setting out in these reasons the full factual basis of sentencing, the agreed summary does that and I will sentence in accordance with it, as well as the photographs that were referred to and the footage capturing your conduct.
9I will provide only the briefest of summaries of the facts so that my reasons and ultimate sentence might make some sense to anyone who happens to access these remarks when they are published.
10The day before the offending you had been involved in an argument with Vanessa Rocha. You had been in an intimate relationship with her. CCTV footage which included audio from that day before, that is 6 August, taken from the property next to Ms Rocha’s shows her visibly distressed and complaining of being bashed by her boyfriend and asking to use a mobile phone. Now I am not dealing with you for any crimes relating to the 6th. It is just the context as that incident was not reported to police and Ms Rocha has made no statement.
11The only relevance is that she went to stay at a friend's place, that place being in Ashby Court, Chadstone. That is the address you attended the next morning at 10.10 am on the 7th, driving a stolen blue Kluger in breach of the disqualification order that I had imposed only months before. Whether you knew she had spent the night there or not is really neither here nor there. It seems likely you did but that is unimportant. At the very least you believed she was there when you attended. What then took place is captured on the CCTV footage that has been played in this court. I will describe only some of it. You were wearing gloves, and you walked to the front door and then tried to get into the garage. You collected a motorbike helmet from the stolen car and attempted to start a motorbike at the property. A male exited the house carrying a baseball bat and the two of you then had a brief conversation and you went back to the stolen Kluger and started to reverse away. At the same time a male and female came out of the house, the male with a baseball bat approaching in the direction of the car you were in. You accelerated forward at him at pace in the confined area of that driveway. He jumped out of the way and only narrowly avoided being struck. Had he not taken that swift action, it is plain from the footage that he would have been struck by the stolen car that you chose to drive at him - hence the conduct endangering serious injury charge. The summary at paragraph 12 discloses how that phase then ended. A Triple 0 call was made by someone from within the premises advising of what had just taken place.
12This would all have been serious enough had nothing further happened that day. Unfortunately, you raised the stakes very considerably, for at 3.00 pm on that same day you returned to that unit, this time driving a Renault Meganne. Of course you were still disqualified.
13The CCTV footage shows you carrying a tool bag and wearing a glove on your hand. You tried to open the garage door. You went to the front door, and you were evidently talking to the residents who were within the premises. From your counsel’s written submissions, it looked like your knowledge as to people being inside the unit was a matter somehow in dispute, but Ms Seoud made it clear on the plea that she conceded that fact and that it was obvious from the footage. You knew this unit was then occupied. You had been speaking to people within the unit, people who were, very wisely, not prepared to admit you to the property. You repeatedly kicked the front door and then removed a large black firearm and pointed it towards the front door. You kicked the door again and tried again to enter the garage. You went back to the front door and pulled the handle and used such force as to lift the handle partially off the door itself.
14You were not successful and kicked the door again, took a few steps back, aimed the firearm at the door and discharged it into the door. You then left.
15The residents had rung Triple 0 again. Police attended and identified the parties inside being three males and two females, including Vanessa Rocha your ex- partner. All of them refused to make statements.
16Crime scene officers examined the scene and found a Luger cartridge case on the drive and a ballistics expert the next day found the fired projectile and fragments within the unit. They were on the living room floor about five metres down the hallway from the door. That was consistent with the nine-millimetre bullet passing through the door, ricocheting off the floor, hitting a solid metal beam in the ceiling and then landing back on the floor. Your prints were located on the outside of the door, but the footage was so clear they hardly mattered.
17You were arrested on 10 August at Fountain Gate. You had yet again been driving, this time a car with false plates and yet again of course in breach of the licence order that I had made. There was a round of live nine-millimetre ammunition found in that car and some small quantities of drugs. The firearm that you employed has not been recovered. You refused to provide your pass code to your phone.
18You were a prohibited person at the time of these events, owing to the community corrections order I had placed you on, as well as the family violence intervention order that was then in place.
19In the police interview you predominantly no commented, as was your right, but you seemingly drew some confidence from your belief that the police had no statements from the key witnesses in the unit. Pretty silly really given that the police had played you the footage in the interview. You were right on one topic: none of the occupants wanted to make statements. They did not need to, the footage capturing your acts was quite devastating - the case against you quite overwhelming.
20You have been in custody since your arrest.
21That is only a brief summary of the agreed summary in this matter. As I have said, I will sentence pursuant to the more detailed agreed summary which has been marked as Exhibit A on the plea, and those other matters I have referred to including the photographs and the footage. The footage is pretty breathtaking. You were not discharging a live round into the chimney or roof of premises that may or may not have been occupied. In broad daylight you re-attended the property. You were angry. You wanted to get in but could not. I am not dealing with you for attempted aggravated burglary or any such offence, but it is clear as day that it was your intention to enter these premises. It is clear also that you were arguing with those within. One of those within was your ex- partner. You knew not only that that house was occupied but that it was occupied by a number of people. You were talking or arguing through the door with them. Simply having the firearm would have been bad enough given your status as a prohibited person, these facts would make it a serious example of that offence. Of course it went much further; it was a loaded firearm which you then used to discharge through that front door with a bullet entering the premises, a bullet that could have struck anyone inside, a bullet that ricocheted dangerously within. This was extremely serious offending. There is really only one possible outcome, that being a lengthy prison sentence. I must also deal with the breach of the community corrections order.
Impact
22There were no impact statements or even police statements made by any of the occupants, I hardly need them to understand the short-term impact. This was obviously frightening offending. On two occasions that day the occupants, whom it might be inferred are not greatly pro-police, felt compelled to ring Triple 0 for assistance. The occupants have decided not to make statements or victim impact statements. That is their choice, and because of that it really is impossible for me to find or factor in any long-term impacts arising from those crimes.
In Mitigation
23Ms Seoud conducted the plea in mitigation on your behalf last week. She relied upon a written outline of submissions for the plea dated 9 December 2024. There was some written material including a remand outcome screening report, an old report from a psychologist, Luke Armstrong, as well as a bundle of course or program certificates and a prison education summary. There were also a number of references, including from your two sisters and your mother and father.
24Either by reference to the written materials filed on the plea or the oral submissions supplementing those written materials, Ms Seoud provided to the court some detail as to your family, educational, work, drug use, relationship, physical and mental health issues, and also, finally, your past criminal history.
25She made some submissions to the court as to your time in custody and the efforts that you have made. She dealt with your prospects of rehabilitation. She addressed me as to the objective gravity of the offending and as to the relevant sentencing purposes and the weight which should be given to them.
26In the plea in mitigation, she relied principally upon the following matters in mitigation:
· Your early guilty plea;
· The presence of some remorse;
· Some increased burden upon you arising from your knowledge of your grandmother's predicament;
· The delay in this matter being finalised.
This case had been adjourned, in part to permit the obtaining of a report from a psychologist Mr McKinnon. Ms Seoud told me that it had been obtained and was of no assistance and was hence not being relied upon. It therefore had not been filed. I do not draw an inference against you from that, it is just not before me, that is all. However, the submission as to delay was a relatively strange one given that the matter really should have been finalised in April of this year on the first plea date. I will come back to discuss that later.
27Ms Seoud conceded that the offending was serious and that a head sentence and a non-parole period was inevitable here.
Prosecution
28The prosecutor, Ms Paganis, had also prepared some written sentencing submissions dated 13 December. She also made some oral submissions last Friday.
29Those submissions really were not in any way controversial, the Director of Public Prosecutions was calling for a head sentence and a non-parole period, a disposition which had already been conceded to be inevitable by your own counsel - correctly so, if I may say so.
Background
30Let me turn to your background. I will do so briefly as I have no reason not to accept the submissions and the material placed before me as to your family and personal background. I just see no need to repeat it all back to you. Much of it is set out in the report of Mr Armstrong and there is coverage of it in the written outline. It was not suggested that your background was disadvantaged or in any way attracting the application of any of the principles from the High Court decision of Bugmy[1]. Nor was there any submission that any of the Verdins[2] principles had any application in my task either.
[1]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’).
[2]R v Verdins [2007] VSCA 102 (‘Verdins’).
31Very briefly then: you were born on 12 July 1993. You are now 31 years of age.
32You grew up with both parents until they separated when you were in Grade 6. You are one of five children with two younger sisters and two half-brothers who are a good deal younger. You were educated to Year 10 level. There is reference to the circumstances of the separation of your parents when you were in Grade 6, and it was no doubt a difficult period for you. You took on a caring role for your sisters, a role which was really well beyond your years, you were only 11 or 12 at the time. That phase of your life is addressed in the report and the outline, and also in some of the references, and I do not ignore it.
33You moved in with your father and his mother, your grandmother, when you were 15 and you worked for a few years with the family trucking company as a truck jockey. However, as I understand it, a major contract was lost and you then became a factory worker.
34Drugs have been problematic for a number of years, initially cannabis and cocaine, and by the age of 21, you had moved on to ice. That was around the time you commenced offending. There have been periods when you have been drug-free and offence-free, and then you have relapsed. I have already mentioned my involvement in the appeal that you brought against the 10-month prison term and the community corrections order imposed at the Dandenong Magistrates Court back in March 2022. I allowed your appeal on 1 March 2023. By that time, I was told you were running a small business dealing with sneakers and that you were travelling very well indeed.
35You have comprehensively breached that community corrections order of course by this offending, but also your performance to the point of your arrest was unsatisfactory with really very little done on that order.
36You have a criminal history and it is obviously of some relevance to my task. I am not going to set it all out. There have been a number of appearances before the courts over the years for offences of differing levels of seriousness. There are driving, drug, weapons, dishonesty, family violence and assault matters, to name some of the matters you have been dealt with previously. You have not taken the chances offered to you by the courts - you should have. I offered you a pretty big chance in March of 2023 when you successfully appealed. I released you onto a two-year community corrections order on 1 March 2023. You were already then on another community corrections order imposed in January of that same year. Well, here you were in August of that same year offending in this way.
37As to that prior criminal history, I do not lose sight of the fact of there being some duplication existing within the record and some pretty decent gaps in offending. Further, of course, you do not fall to be sentenced a second time for any of those past matters, other than of course the community corrections order which I will deal with today. You received those past sentences, and you have served them. I do, however, have to make judgments as to your risk of re-offence and the extent of the need to deter you and to protect the community from you. I have to make judgments as to your future prospects of rehabilitation. You need to be deterred and plainly community protection is a sizeable matter in my task given the nature of the offending I am dealing with.
38I have dealt only really quite briefly with your background. You are of course far more than just the person committing these serious offences. The character references speak of your qualities and the way that you are viewed by those who know you well - they see a road back for you.
39You have been doing a large number of courses and programs in custody and you are also working whilst in custody, and these are positives.
Guilty Plea
40I turn to some of the other matters raised on the plea by your counsel. Firstly, the fact of your guilty plea and the stage it was entered. I will treat it as a plea of guilty made at the earliest opportunity.
41You have taken this early responsibility for your crimes.
42As a result of your guilty plea, the time, cost and effort of a committal in the lower court and a trial up in this court has all been avoided. Witnesses have been spared the experience of giving evidence at a committal or trial, or for some of those in the house, more likely some form of compulsory examination procedure.
43You have facilitated the course of justice and you must be rewarded for doing so.
44I take these various matters into account in mitigation.
Remorse
45I turn then to the issue of remorse. Your counsel, Ms Seoud, relied on your early guilty plea and your efforts in custody. A guilty plea can be indicative of some remorse but that is not always the position. Is it here indicative of remorse? The case here was overwhelming. That in no way erodes the value of your guilty plea, I do not confuse the two issues. The discount that I have recently been talking about which is coming your way owing to the fact of and stage of your guilty plea, is not dependent on my making a finding as to the presence of remorse. They are quite separate matters. However, given the strength of the prosecution case, what else could you really do here? Inferring the presence of remorse from your guilty plea is not too easy given the weight of the evidence against you. There are also some references to remorse in some of the letters but in a setting where a number of those authors make it clear they do not know too much about the offending and have not asked you for much detail. You have at least been doing whatever you can in custody by way of education, courses and programs.
46Having considered the matter since the date of the plea, I am prepared to accept your counsel’s submission and find that you have some remorse, and I do take that into account.
Rehabilitation
47I turn then to your prospects of rehabilitation. This was serious offending. It was committed by a mature man who was on two court orders at the time, court orders which were designed to keep you out of prison and to actually foster your rehabilitation. Orders that just meant nothing to you. You just ignored them. You have a criminal history and you have had long term issues with a number of drugs of dependence.
48I am told that you are currently drug free and it is plain that you are working and doing courses and programs in custody. You plainly have family support. Again, today there are many family members present. These are all positives. Of course, you had family support at the time of my placing you on the community corrections order and at the time of the offending I am now dealing with. It did not stop you from offending.
49Your counsel, Ms Seoud, was submitting that you had some prospects of rehabilitation. She put it no higher than that. I can really only be quite guarded at this point. I am sure the sentence I will soon impose will have some role in deterring you. I accept her submission that you do have some prospects of rehabilitation. It is obvious though that there is a risk of future offending and not by any means a slight risk. Your prospects would obviously rise very significantly if you could abstain from illegal drugs but that has been an issue for you over the years.
The Report
50I have mentioned already the report of Luke Armstrong. It is an old report and it does not in any way address this offending before me at all. I am not going to set out the detail from that report. It sets out some detail of your background and functioning and what you needed to rehabilitate. I acted on that report when I placed you on a community corrections order last year. Here we are again.
51Ms Seoud was explicit in disavowing any reliance on any of the limbs from the well-known case of Verdins. She told me that the new report from McKinnon had been obtained to consider potential Verdins issues and was of no value in that respect. I take the report of Luke Armstrong into account. It goes into your background in some detail and that really is why it was placed before me.
Delay
52I deal now with the aspect of delay that was raised on the plea. The delay argument had really very little weight. You committed the offences and were swiftly enough committed to this court, and then the matter has halted. The adjournment applications were applications made on your instructions. The case should have been finalised in April of this year, and was not, as you succeeded in adjourning the case. It is not appropriate that I give much weight to either limb of delay. Your counsel was focusing on the second limb relating to the impact of the matter being over your head.
53It is just not appropriate in this setting to treat the delay as involving anything resembling a separate penalty. Firstly, it is not much of a delay. Secondly, the matter has been left hanging as a result of successful defence applications to adjourn this case - your case. They are your applications. I cannot look behind those applications and find fault in any legal team or reach any view that they were acting inappropriately or without your instructions. At least you have stayed out of trouble and done the courses and programs, but beyond that there is no mitigation to be had.
Increased Burden
54Nor do I see much in the increased burden argument arising by way of your concern for your grandmother - (See paragraphs 43 to 45 of the defence outline). I cannot take into account any impact upon her. That sort of thing is prohibited in the absence of an exceptional setting, which your counsel conceded did not arise here. There is no reason for me to think that she is plunged into any crisis by virtue of your being absent. I do not doubt that she will miss you, but there are plenty of relatives existing on the outside, including your father and sisters, and they will no doubt all act to ensure that the sorts of things that you did for your grandmother will continue to be done. You will know that, but no doubt you would prefer to be by her side, especially given her age. I can give that issue only very modest weight indeed.
The Offences
55Let me turn then to the offences.
56The agreed summary describes your offending. I see no point in repeating all the agreed facts. The footage speaks for itself. Your counsel concedes the seriousness of this offending.
57You were on two community corrections orders and you were disqualified from driving. Not only were you ignoring that licence order, you were driving a stolen car - that is a pretty bad start. This was only five months after your then counsel, Mr Dunn KC, pleaded with me to give you a chance. It was a last chance he was asking for and I gave you that chance.
58Not only were you driving a stolen car but then driving it at another person in such a manner as to endanger serious injury. That was not some theoretical risk. But for taking swift evasive action, you plainly would have struck the male in the footage, whoever he was.
59Foolishly you went back later. You were a prohibited person. Even had you not discharged the weapon, the possession by you, a prohibited person, of such a firearm in the circumstances described, would plainly have fallen into the more serious class of cases described in the Berichon[3] line of authority. This was not some non-functioning weapon found down the back of a garden shed or behind a wardrobe, it was an operational firearm carried to the scene by a prohibited person and carried for a criminal purpose plainly enough.
[3]Berichon v The Queen [2013] VSCA 319
60To have then discharged that weapon in the manner that you did leads into the other offence, the most serious by far on the indictment, that of using a firearm to discharge a shot at premises with reckless disregard for the safety of any person. There are many ways that offence can be committed, for instance discharging into a roof or chimney or brick wall or from a distance, or with varying levels of knowledge as to the occupation of the premises. You were there in anger and you were fixed with knowledge of people being inside that unit. Of that I have no doubt at all. I am satisfied of that beyond reasonable doubt and your counsel conceded that and withdrew her written submission which had stated otherwise at 30 (iv) of her outline.
61You were arguing with people who were inside that house. Whether they were close to the door at the time you discharged the firearm is not clear. It really does not matter. How could you know where they were in relation to that door? You could not see through it, but you could shoot through it. That is the setting for you, in broad daylight, in a public place, to fire a live round into that door with the entry and ricochet described. It was incredibly dangerous, with a bullet that you had absolutely no control over once it left your gun.
62This was a very serious example of that offence. I have barely mentioned the drugs charge and will say little about it. It is of no significance at all and the same can be said for a number of the summary matters. The drive whilst disqualified in each instance involved a complete and wilful disobedience of a formal court order.
63You heard reference in discussions to a case of Haddara, a decision of our Court of Appeal. Haddara's case has some useful utterances as to the offending, both contained within the single judge leave application[4] and the decision from the bench of two[5]. The high penalties for the offence under s131A of the Firearms Act were established in recognition of the seriousness and potentially lethal consequences of firearm use. The provision was introduced in response to an increase in 'drive-by' shootings.[6] (See the Court of Appeal, paragraph 20). The Court of Appeal referred to the case of Bruce,[7] a decision where an eight-and-a-half-year term survived on appeal. The bench of two in Haddara's case spoke with approval of Taylor’s JA approach.[8] (See paragraph 32). Your act plainly involved premeditation. You were prohibited and you were on a community corrections order. You went back to this scene carrying the weapon. It was large handgun. You shot into residential premises in a built-up area, though not in a setting where other residents or passers-by were at risk as might for instance occur if you were shooting from a distance across a road or a carpark. It was broad daylight and the unit was occupied, and you knew that fact. You were obviously angry for some reason not entirely clear to me. Whether it related to the presence inside of your ex-partner or some other reason connected to the earlier attendance, I simply cannot determine. It does not matter. You were quite close to the door when you fired the weapon. You knew there were people within. The bullet penetrated the door and dangerously ricocheted. I will not get caught up in the submissions made to me by either side about the relative power of the weapon or the round - (See the defence outline 30 (ii) and the Crown outline 12 (b).) - I do not need to. You did not strafe a property with a sustained burst from a machine gun, you did not use a .22 or an air rifle. Whether a nine millimetre is more powerful or carries a greater penetrative force would no doubt be determined by the nature of the weapon and bullet, and in the case of the shotgun the nature of the load of the cartridge. I am not a ballistics expert. I do not need to descend to that level. You fired a single shot. That round penetrated the door and ricocheted within. No-one was actually hurt but that was just a matter of pure good fortune for you and for them. Had someone been injured, it is easily possible there would have been another charge laid. Of course, the sort of risk you were taking might easily have led to a far more dire outcome, with a court hearing in the highest court in our hierarchy.
[4]Haddara v The King [2023] VSCA 250
[5]Haddara v The King [2024] VSCA 269 (‘Haddara’)
[6] Ibid at [20]
[7]Bruce v The Queen [2022] VSCA 100
[8]Haddara at [31]
64The court in Haddara found that sentences in this area ranged from between 15 months and eight-and-a-half-years, that it was plain from the case law that this is an inherently serious offence, one that exhibits a mindset for lawlessness that is dangerous and frightening to the community generally. (See paragraph 38).
65They said that Parliament evidently perceived that such shootings were increasing and needed to be strongly denounced and met with stern deterrence.
66Your counsel argued that you had gone away and borrowed the firearm. Who knows if that is true? It does not sound too likely to me. But even if that were true, it would not be in any way mitigatory. Whether you owned the firearm, or begged, borrowed or stole it, is neither here nor there. You came back with it which spells out a level of premeditation here. What a dangerous setting; a man so angered that he goes and obtains a loaded firearm to take back to a place where there is some form of grievance, either with his ex-partner or even perhaps the fellow in the motorbike helmet. You then used that weapon in anger.
Purposes
67I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. I do not view your prospects too favourably.
68I must give appropriate weight to the other purposes of sentencing. I am required to punish you justly and proportionately. I must also denounce your conduct. These are each important sentencing purposes.
69I must pay regard to the need to protect the community from you. That is a sizeable factor here for very obvious reasons.
70You were on this day a dangerous individual, both in the car and with the firearm.
71I have to give adequate weight to specific and general deterrence. Specific deterrence relates to the need to deter you. Plainly, it is an important sentencing purpose here.
72General deterrence relates to the need to deter other future offenders, and it must be given real weight in my sentencing task. That case of Haddara dealt with this principle at length and made it very plain that it is important that sentences for crimes against this provision be sufficient to constitute a clear message that any person who is minded to engage in the form of dangerous conduct represented by the offence, will on apprehension, lose his or her liberty, or right to be at liberty in society, for a substantial period of time. That the advantage they seek to obtain by acting unlawfully will, so far as the sentencing system can justly achieve, be met with a corresponding disadvantage by way of penalty. General deterrence is of real importance in this sort of case.
73The courts must pass sentences which will cause those considering committing crimes such as yours to reflect and to re-consider their position.
74I have to pay regard to the impact of the crimes and also the maximum penalties in play.
75I have to pay regard to current sentencing practices. That is not a single controlling factor. I have looked at the statistical material on the Sentencing Advisory Council site for the various crimes to which you have pleaded. Statistical material has inherent limitations. I have looked also at the Judicial College of Victoria online assortment of sentencing cases. I have mentioned the case of Haddara, and that has a very decent survey of cases relating to the s131A offence and some strong statements of principle as well.
76I am sentencing you for your crimes. That is not a statistical or mathematical exercise. The outcome in this case is not dictated by what has happened in other cases or by average outcomes as disclosed in the statistics. The statistics can never disclose why a particular sentence was selected. They will never spell out all the matters in mitigation and aggravation.
Totality
77I have differing offences with differing elements. So, offences capturing differing vices. You were a prohibited person. You could not lawfully possess any firearm at all. That act was prohibited. It was conceded that that was a serious instance of that crime. You not only possessed one, you shot a live round into the premises, thereby offending against a different provision with a larger maximum penalty within that same Act. The conduct endangering serious injury was earlier in the day and it was constituted by a very different act indeed, the use of a car. It was a stolen car you were driving. You were disqualified from driving. So, whilst there is some relationship between the offending in that most of the offences occurred on the same day and the same premises were targeted, there is plainly a need for a measure of cumulation here. There is a very strong relationship between the two Firearms Act offences such as to cause me to be awake to the need to avoid double punishment. There must be some level of cumulation to mark out those different offences, each of them serious in their own right. But there must also be some moderation owing to that close relationship.
78I take into account the principle of totality of sentence. I have taken a last look at the effect of my orders for cumulation, including the cumulation orders made on the community corrections order breach and resentencing exercise, and I have done this to ensure that the overall effect is not crushing and is commensurate with your overall criminality. Your criminality was high indeed on the indictment offending.
79A court must never impose a more severe sentence than that which is required to achieve the purposes of sentencing. Prison is always a disposition of last resort. There is no other option here, as was conceded by your counsel.
80I will make orders on the community corrections order breach. I will re-sentence you on those matters.
81On the indictment, I will pass individual sentences for each one of those five charges. I will mark out one as the base sentence, that will be the sentence imposed on the s131A matter clearly enough. I will then pronounce levels of cumulation upon that base sentence and reach in this matter a total effective sentence on the indictment and related summary matters. I will then specify the extent to which the community corrections order re-sentence runs cumulatively upon the other sentences imposed today, and in this matter I will reach what I will describe as a global total effective sentence as between all matters I am dealing with.
82I will then fix a non-parole period.
83I can make no assumptions as to whether or not you will be released on parole, that sort of speculation is prohibited. That decision will be for the Adult Parole Board to determine. Given the duration of the head sentence, I am required as a matter of law to fix a non-parole period.
84I will have you remain seated for the moment.
85Let me now pass sentence.
Community Corrections Order Breach
86I will deal firstly with the charge of contravention of the community corrections order and then the re-sentencing exercise on those matters.
87I will set out a very brief chronology, though the prosecution's written submission as to the contravention has a more complete one. It is really just to remind you of what has happened in the past. You appeared before the Dandenong Magistrates Court on 4 March 2022 on a multi-brief consolidation relating to five separate informants. The charges spanned the period from December 2019 through to 11 June 2021. The Magistrate on 4 March 2022 imposed an aggregate fine on some of the charges, a community corrections order on others and a 10-month aggregate prison term on yet others. It was not strictly a combination order in that there were no charges for which you were both imprisoned and admitted to a community corrections order. There were also a variety of licence orders. The total effective sentence then was a fine, a 12-month community corrections order and a 10-month term of imprisonment. You appealed and you were released on appeal bail a few days later. The hearing of that appeal was greatly delayed by virtue of your repeated successful applications to adjourn the matter. Some of those adjournments were to obtain reports, others to permit you to engage in ongoing rehabilitative efforts so that material could then be made placed before the court. I indicated that there would be no further adjournments and so it proceeded before me on 1 March of last year. Mr Dunn KC appeared for you. I was persuaded to allow your appeal. I reimposed an aggregate fine on a handful of charges and so they are not before me on this breach. They were finalised by me last year. I convicted and sentenced you to a two-year community corrections order with a variety of conditions. It was a stand-alone order. I also made various licence orders. I spelt out to you explicitly the terms and the conditions of that order, and that if you breached it, I would most likely have to re-sentence you, and if you were foolish enough to place yourself in that position, a prison sentence would be the most likely outcome and that you ought not view the 10 months imposed in the Magistrates Court as being some theoretical ceiling.
88The breach is proven, you after all pleaded guilty to that charge. You have comprehensively breached the community corrections order I placed you on.
89The breach was by offence and also non-compliance, and you were back in custody pretty swiftly. I have already said, the indictment matters I am dealing with took place on 7 August 2023 (most of them) - that is the date that you were driving a stolen car at a person thereby endangering them and the day that you were discharging a round into a house out in Chadstone. The CCO has not been a success, and paradoxically, had I not allowed your appeal you would have in fact been in custody on 7 August rather than roaming around with a loaded firearm. But that was your choice, not mine, and it was a very bad choice.
90The breach package has been filed and contains the breach report as well as the original summaries. I see no need to work my way in these reasons through that earlier offending, the summaries were agreed and my reasons will be long enough as is.
91I am required to take into account the extent of your compliance on the community corrections order, which was minimal at best.
92I must impose a penalty for the offence of contravention. I must also then exercise one of the options under s83AS(1) of the Act and plainly the only option here is to cancel the order and to re-sentence you (s83AS(1)(c)). That fact was conceded by Ms Seoud.
93I did not impose a combination type order in March 2023 when I allowed your appeal. I placed you onto the community corrections order on a stand-alone basis without imposing a prison term at the same time. I told you I had regard to the fact that you had spent those 53 days in custody in determining that I could put you on the community corrections order and that you should not think that those days would be declared - that they would not be if you breached the order and were resentenced by me. I also made it clear though on the day that of course I would listen to anything said on your behalf at any breach proceeding and that nothing I then said was set in stone.
94I am now dealing with you in a setting where you face a large prison sentence to be imposed on the indictment matters.
95I have considered the various matters raised on the original appeal plea including things such as your guilty plea and issues of remorse and rehabilitation. The original offences have not altered, they are what they were when I dealt with you. Your prospects of rehabilitation have of course dimmed a bit since as a result of your conduct. I have regard also to the matters raised on your behalf in the current matter insofar as they bear upon my re-sentencing task on those old matters - for instance, your current efforts in custody. I take into account, as I must, your guilty plea to the charge of contravention.
96There are some matters that in my view do not warrant a term of imprisonment. I am not going to dither around going back to the original summaries and setting out the factual basis of sentencing. The agreed summaries set that out.
Re-sentence
97Let me then deal with the re-sentencing exercise. On the informant Vejar's matters, that is Charges 4 and 5, a charge of refuse oral sample and dangerous driving, I am going to convict and impose an aggregate fine of $1000 on those two charges.
98On Charges 13, 14 and 15, this is on the informant May's brief, two charges of contravention of a family violence interim order and one charge of criminal damage, I convict you and impose an aggregate fine of $900.
99This leaves the balance of Informant May's matters which involve a large number of offences relating to your conduct targeting your then ex-partner, acts involving physical violence, property damage, a Bail Act offence, a weapons offence and repeated breaches of the full family violence order in place to protect her, all of it occurring from 6 June to 11 June. It was serious conduct as the summaries makes plain.
100The Magistrate on those matters imposed an aggregate prison term of 10 months across all those charges, with the exception of the weapons offence, Charge 30. I will take the same approach in that on Charge 30 I convict and fine you the sum of $400.
101Of course, the Magistrate had at the same time placed you on a community corrections order for the other matters that she dealt with.
102On Charges 16, 17, 20, 21, 22, 23, 25, 27 and 28, my view is that a term of imprisonment is plainly required. I convict and imprison you on those charges to an aggregate period of seven months' imprisonment.
103On the charge itself of contravention of the community corrections order, I convict and imprison you for a period of seven days. That seven-day period will be served concurrently with the seven-month aggregate period imposed on those other charges. I have proceeded by way of an aggregate sentence here given the relationship between those various offences. No doubt I could have you pinned down there for longer still and I could impose a variety of individual sentences and make one the base sentence and then make a large number of partial cumulation orders. I see no point doing that in the setting that I am facing and the ultimate outcome would of course be precisely the same.
104So, the total effective sentence on the community corrections order
re-sentencing exercise is a term of seven months' imprisonment.105There are also the fines I have mentioned and that concurrent sentence on the breach offence. I will deal with the relationship between that sentence and the sentences imposed on the indictment matters in one moment. I will deal now then with the fresh charges. Firstly, the charges on the indictment and then the related summary matters.
Ancillary Orders
106There is application for a disposal order pursuant to the provisions of s78 of the Confiscations Act. This relates to the forfeiture of the items set out in the schedule which relate to the various drugs that were seized. There is no opposition taken to the making of this order. I am satisfied that the conditions exist for the making of this order. I have signed the order. I direct that the items referred to are forfeited to the State and that they be handled in the manner contemplated by that order that I have signed and pronounced in abbreviated form.
107There is also an application for forfeiture relating to the various ammunition, the fired bullet, and the wadding and cartridge case and the like. There is again no opposition to the making of this order under the provisions of s33 of the Confiscations Act. I am satisfied that the conditions exist for the making of that order and I have signed it and pronounced it in abbreviated form. So those items are forfeited to the relevant Minister.
Indictment Sentence
108Let me deal then with the sentences on the indictment.
109I will have you stand up now please.
110On Charge 1, conduct endangering serious injury, I convict and sentence you to 24 months' imprisonment.
111On Charge 2, prohibited person in possession of a firearm, I convict and sentence you to two-and-a-half-years' imprisonment.
112On Charge 3, the use of a firearm to discharge a shot into premises, I convict and sentence you to five years, nine months' imprisonment. That will be the base sentence.
113On Charge 4, car theft, I convict and sentence you to eight months' imprisonment.
114Charge 5, the possession of small quantities of various drugs of dependence, does not even warrant a prison term, in my view. I convict and fine you the sum of $600 on that charge.
Summary Matters
115I turn to the related summary offences. On the three drive whilst disqualified charges, I believe it is open and appropriate to impose an aggregate sentence in the circumstances. I convict and sentence you to an aggregate of one month imprisonment on summary Charges 7, 8 and 10.
116On the unregistered motor vehicle charge, I convict and fine you $300.
117On the possession of ammunition charge, I convict and fine you $400.
118On the registration label offence, I convict and fine you $250.
119On the failure to provide assistance to access the data charge, I convict and sentence you to seven days' imprisonment.
120The base sentence is then the five years, nine months imposed on Charge 3.
Cumulation
121I direct that:
·Eight months of the sentence imposed on Charge 1,
·Four months of the sentence imposed on Charge 2; and
·Three months of the sentence imposed on Charge 4 is to be served cumulatively upon the base sentence and upon each other. The other two prison sentences imposed on the related summary offences will be served concurrently upon the base and part cumulative sentences.
Total Effective Sentence
122These orders produce 15 months' cumulation and hence result in a total effective sentence of seven years' imprisonment.
Cumulation of community corrections order matters with indictment and related summary matters.
123I direct that three months of the seven month sentence imposed on the community corrections order re-sentencing exercise is to be served cumulatively upon that seven year total effective sentence imposed on the indictment matters
Global Total Effective Sentence
124That final cumulation order produces a global total effective sentence across all the matters of seven years and three months.
Non-Parole Period re all sentences imposed today
125I fix a period of five years during which you will not be eligible for release on parole.
Section 18 Pre-Sentence Detention
126You have served already 495 days of the indictment sentence by way of pre-sentence detention and that will be entered into the records of the court pursuant to s18 of the Sentencing Act.
127Despite what I said to you in March of last year, I have taken the view that I should also declare the 53 days that you have previously served on that appeal matter. That period will be declared on that matter, and I will make a note on the orders in each matter to spell out that you have served in total the period of 548 days pre-sentence detention, referable to that global total effective sentence - that is the 495 plus the 53 days.
6AAA
128I have told you I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these indictment matters following a trial, I would have sentenced you to eight-and-a-half years' imprisonment. I would have fixed a non-parole period of six-and-a-half years. I have not factored in the increase to each of those numbers which would have resulted from the re-sentencing exercise on the community corrections order breach. That s6AAA declaration relates purely to the indictment charges.
Licence
129Finally, I am required to make a licence order on Charge 4, the charge of car theft, owing to s89(4) of the Sentencing Act. All licences and permits are cancelled and you are disqualified for a period of six months, effective from today’s date. I have considered whether I ought also make a licence order under section 89A in relation to the conduct endangering serious injury charge given the use of a motor vehicle in that regard. I have taken the view there is just no utility in doing so given the length of the sentence I have pronounced, the amount of time you will spend in custody, and that the order I made against your licence in the appeal matter was for a four-year period backdated to the date of the Magistrates Court hearing on 1 March 2022. So I make no licence order in relation to Charge 1.
130Just have a seat then for a moment, I will see if there is anything else I need to attend to. Yes, anything else from your perspective, Ms Paganis.
131MS PAGANIS: Nothing further, Your Honour.
132HIS HONOUR: Mr Taleb, anything else - - -
133MR TALEB: Nothing further, Your Honour.
134HIS HONOUR: You will go down and see your client downstairs today.
135MR TALEB: Indeed, yes.
136HIS HONOUR: And you will discuss what's taken place. I will get these reasons back - I think there's a chance I will get them back this week. If I get them back this week, I will revise them, but I'll release them to the parties as soon as I've revised them. That completes the matter then, so if Mr Sulemani can be removed. Mr Taleb will come down and have a chat to you downstairs, Mr Sulemani. Alright, 9.30 tomorrow then please. Thank you.
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