Director of Public Prosecutions v Vinen
[2025] VCC 757
•06 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-02183
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICKOLAS VINEN (AKA FIELDUS) |
---
JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2025 | |
DATE OF SENTENCE: | 06 May 2025 | |
CASE MAY BE CITED AS: | DPP v Vinen | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 757 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Guilty Plea – Sentence – Firearms offences-Serious offending – Double punishment – Prohibited Person - Poor rehabilitation prospects – Relevant criminal history – Traumatic childhood - Bugmy.
Legislation Cited: Crimes Act 1958 (Vic); Firearms Act 1996 (Vic); Family Violence Protection Act 2008 (Vic) Interpretation of Legislation Act 1984 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:DPP v Graoroski [2018] VSCA 332; The Queen v Kilic [2016] HCA 48; DPP v Le [2018] VSC 576; R v Madex [2020] VSC 145; Zogheib v R [2015] VSCA 334; Cooper v R [2020] VSCA 288; Kelly v R [2020] VSCA 171; Marrah v The Queen [2014] VSCA 119; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102.
Sentence: Imprisonment for 4 years’ and 8 months’ - Non-parole Period – 2 years’ and 10 months’ – s 6AAA-7 years’ – Non-parole period of 4 years’ and 2 months’ - S 6AAA – 7 years - Non-parole Period 4 years’ and 2 months’.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr J. Mortley | Slades & Parsons |
HIS HONOUR:
1Nickolas Vinen, you have pleaded guilty to the following charges:
(a) On 12 April 2024, you recklessly engaged in conduct that placed the life of Daryl Minton-Green in danger of death, contrary to section 22 of the Crimes Act 1958 (Vic) (‘Crimes Act’), which carries a maximum penalty of 10 years; and
(b) On the same date, whilst being a prohibited person, you used a firearm contrary to section 5(1) of the Firearms Act 1996 (Vic), which carries a maximum penalty of 10 years.
2You also pleaded guilty to one related summary offence of contravening a family violence order.[1] You have accepted the jurisdiction of this court to sentence you for this charge.
[1] Contrary to s 123(2) Family Violence Protection Act 2008 (Vic).
3The circumstances of your offending as set out below, are drawn from the Amended Summary of Prosecution Opening dated 10 April 2025, which I note is an agreed document.[2]
[2] Exhibit P1.
Circumstances of the Offending
4At the time of the offending, you were 31 years old and living in Moorabbin. You were in a relationship with Teegan Bartlett and were a friend of Lewis Capouleas.
5Daryl Minton-Green was 26 years old and was living in Ringwood with his brother, Jake Minton-Green and father, Robert Minton. On the night of the offending, Daryl’s partner, Rebecca James was also staying at the address.
6On 11 April 2024, Ms Bartlet, Mr Capouleas and yourself were at your apartment. You were seen entering and leaving multiple times in a silver Toyota Rav4, bearing registration plates 1ZQ5BH. At 2:38 am Mr Capouleas texted Daryl:
‘Brother…U up…I’m in the area and I just gonna drop in real quick nothing major bro’
7Daryl confirmed that he was awake but that his family was asleep, he texted that Mr Capouleas could still come to the house if alone and he remained quiet.
8Mr Capouleas told Mr Minton-Green that he would be quiet but that a mate was driving him there. You were then seen on CCTV leaving the apartment complex with a green shopping bag and a dark coloured bag alongside Ms Barlett and Mr Capouleas.
9Prior to you arriving, Daryl told his brother Jake that someone named Lewis was coming over. At around 3:00 am there was a knock at the front door. Jake saw Daryl answer the door and two males he did not recognise came in.
10Jake noticed that you were carrying a green bag, holding it up around your upper chest. He thought the bag contained a weapon, being either a knife or a gun. Jake attempted to move to the lounge-room but was directed by you to go back into his brother’s bedroom.
11All four men went into the bedroom. Daryl sat on his bed and laid back. Jake stood to the right of him. Mr Capouleas was to the left and you closed the bedroom door and stood in front of it.
12Mr Capouleas and Daryl then had a conversation during which Mr Capouleas said you and he were not leaving the house without ‘tak[ing] something as collateral’.
13You told Daryl that ‘we’re not leaving here with nothing’ and pointed the bag towards him.
14Whilst the content of the bag was not visible, Jake believed that it contained a gun due to the shape and what he could hear, stating that you were holding it like a shotgun.
15Daryl said words to the effect of ‘don’t even threaten me in my own house cunt, I’m not scared of you’.
16You then pointed the bag, standing directly over Daryl and fired the gun once, letting off a loud noise. He began screaming, clutching his left leg and bleeding. Jake grabbed a towel and wrapped it around his brother’s left leg.
17You and Mr Capouleas opened the door and ran down the hallway and out the front door. Mr Minton came out of his bedroom after hearing the noise and saw you two running out of the house and was informed by Jake that his brother had been shot.
18Mr Minton went outside and saw a silver coloured four-wheel drive go past the house with a female driver. Someone in the car yelled ‘where’s his phone, dropped his phone’. Mr Minton could see the barrel of the gun sticking out of the window and another person in the car behind the driver’s seat. CCTV shows your car exiting Mr Minton-Green’s driveway at 3:13 am.
19Mr Minton-Green was taken to Royal Melbourne Hospital for treatment.
20At 3:49 am, CCTV shows you, Ms Barlett and Mr Capouleas returning to the apartment complex, carrying a black puffer jacket which appeared to wrap around a long object, carried underneath your arm.
Injury
21Mr Minton-Green underwent three surgeries to remove damaged tissue, pellets, shotgun wadding and to repair damaged muscles and skin grafting. Mr Minton-Green was discharged 14 days later on 25 April 2024.
Arrest
22On 17 May 2024, you were arrested in relation to the shooting at your home in Moorabbin where Ms Bartlett was in attendance. At this time you were subject to a final family violence intervention order that was in place for Ms Bartlett’s protection, the order was in force until 27 August 2024. A condition included that you not be within 20 metres of Ms Bartlet. You were then charged in relation to the contravention of the final intervention order.
23Due to being subject to a family violence order, you were considered a prohibited person under the Firearms Act 1996 (Vic) (‘Firearms Act’).
24The weapon has not been recovered.
Objective Gravity of the Offending
25The offence of engaging in reckless conduct which endangers life is an inherently serious offence as reflected in the maximum sentence of 10 years’ imprisonment.
26The objective gravity of a particular instance of the offence is gauged having regard to all of the circumstances including:
(a) The degree of recklessness;
(b) The nature of the conduct; and
(c) The extent to which that conduct endangered the life of the identified victim.
27In your case, on each of these measures, charge 1 is a serious instance of this offence.
28First, you were grossly reckless.[3] You took a loaded gun with you to assist your friend to recover a drug debt. You then pointed the gun at the victim at close range and pulled the trigger. Your counsel, Mr Mortley submitted that you did not know it was loaded but conceded that you did not check. I do not accept your counsel’s submission that you ‘pulled the gun out of the bag and it went off’.[4]
[3] Cf DPP v Graoroski [2018] VSCA 332, 11 [33] (‘Graoroski’).
[4] James Mortley, ‘Outline of Submissions for Plea’, Submission in DPP v Vinen, CR-24-02183, 7 April 2025, [52][g]. I note that the explanation you gave to Ms Lechner is similar to what you apparently instructed your lawyers.
29Secondly, the offence can be committed in many ways. The use of a firearm immediately elevates the gravity. In a number of the cases to which the court was referred, the conduct involved the discharge of a firearm in circumstances where the recklessness involved not knowing if a person was in a position of danger.[5] Here, on the other hand, you were fully aware that you were discharging your gun directly at Mr Minton-Green as he lay prone on his bed. You did this in a confined space where others, including your friend Mr Capouleas were present.
[5] DPP v Le [2018] VSC 576.
30Thirdly, there was a high degree of endangerment to the victim’s life. As your counsel conceded, if Daryl had been shot in the chest or head, it is likely that you would be facing a homicide charge.
31For these reasons, I accept the submission by the prosecutor that this is an example of the section 22 offence that is towards the upper end of the range of objective seriousness.
32I accept your counsel’s submission that it would be an error to take into account the injuries suffered by Mr Minton-Green as you are not charged with causing those injuries.[6] While it may have been open to the prosecution to have charged you with an offence such as recklessly causing injury or serious injury, that is not what has occurred.
[6] See Graoroski (n 3) 11 [33].
33Turning to the offence of using a firearm while being a prohibited person, this is also a serious criminal offence. It also attracts a maximum sentence of imprisonment for 10 years.
34Under the Firearms Act, a ‘prohibited person’ commits an offence if they possess, carry or use a firearm.[7]
[7] Firearms Act 1996 (Vic) s 5 (‘Firearms Act’).
35You were a ‘prohibited person’ for two reasons. First, you were subject to a family violence intervention order.[8] Secondly, you were serving a sentence of a community correction order that had a supervision condition.[9]
[8] Ibid. See paragraph (c)(ic) of the definition of ‘prohibited person’ in s 3(1).
[9] Firearms Act (n 7) s 3(c)(iia).
36In a number of the cases to which the court was referred, the person was charged with ‘possessing’ a firearm in addition to firing it. The possession charge was made out before the gun was used.[10]
[10] Graoroski (n 3); R v Madex [2020] VSC 145; DPP v Le [2018] VSC 576.
37However, in your case the conduct that gives rise to the two charges is identical – the firing of the weapon. The only element of charge 2 that does not overlap with charge 1 is your status as a ‘prohibited person’. A court in such circumstances must make sure not to doubly punish for the same conduct.[11]
[11] Interpretation of Legislation Act 1984 (Vic) s 51(1).
Personal circumstances
38You were born in April 1993 to mother Vicki Fieldus and father Grant Hartley both of whom were heroin addicts. You are the eldest of four children.
39Your recollections of your childhood in Frankston are of growing up in a chaotic ‘drug house’. You attended about six primary schools.
40At about the age of eight or nine you were placed by child protection with your maternal grandmother. This was a more stable environment but you were still exposed to drug abusing adults and you witnessed family violence.
41You commenced abusing substances at the age of eight when you were introduced to ‘chroming’ and cannabis. By the age of 12 you were using ecstasy and amphetamine.
42Your attendance at school was sporadic and you report being sexually assaulted by a male staff member after you were placed in secure welfare in 2003. You lived briefly with your father who encouraged your drug use.
43In 2008, at age fifteen, you commenced a relationship with Jade. In 2012, Jade gave birth to your son Jordan who was born during your first period of remand. You have little by way of a relationship with either Jade or Jordan. You put this down to your drug use and time in gaol. Child protection have been involved.
44You have a limited work history. You have worked in concreting and fencing.
45Your criminal history commenced in 2012 when you were nineteen. In November 2012, you were sentenced in this Court to 2 years in a youth justice centre for offences including armed robbery.
46You have subsequently been imprisoned for other serious offences involving violence on several occasions. Although weapons were used, as your counsel submitted, none of these offences involved the use of a firearm.
47According to your counsel’s submissions you have only spent approximately 4 years’ and 3 months’ in the community since May 2012. During some of that time you have been serving community-based sentences.
Mental Health
48Your lawyers had you examined by Ms Carla Lechner for the purposes of this hearing. Ms Lechner saw you on 13 and 24 February 2025 and prepared a report for the court.[12]
[12] Psychological Report of Nickolas Vinen (aka Fieldus) written by Ms Lechner dated 25 February 2025 (‘Exhibit D1’).
49Ms Lechner observes by way of introduction that you have a ‘lengthy prior history of offending that has arisen in the setting of a long-standing and chronic poly-substance abuse disorder, with underlying mental health issues contributing to both the onset and ongoing nature of [your] addictions’.[13]
[13] Ibid 1.
50After considering your history and the results of the tests she administered, Ms Lechner concludes that symptoms of both post-Traumatic Stress Disorder (‘PTSD’) and Complex PTSD are present. The latter symptoms are long term and arise from your exposure to Complex Developmental Trauma.[14]
[14] Ibid 5.
51Turning to your explanation for your offending, Ms Lechner quotes you as saying that you were ‘off your face’ and were trying to be a ‘good mate’. In relation to your use of the gun, you said: ‘I was being an idiot … didn’t fully mean to do it … wanted to scare him to pay up … it went off as I was getting it out of the bag’. You accepted that the victim would have felt ‘terrorized and traumatized’ and you felt sorry for him.
52In a passage that Ms Lechner states to be ‘of some concern’, you stated that you cope better in prison where you know the routine and structure and you are away from drugs.[15]
[15] Ibid.
53As far as any connection between your offending and your mental health is concerned, Ms Lechner describes you as ‘cognitively, socially and emotionally immature with a limited capacity for reflective and consequential thinking’. You are ‘inclined to respond reactively and impulsively to environmental stress and internal distress, without considering the full implications of [your] actions’.[16]
[16] Ibid 7.
54Finally, Ms Lechner opines that ‘overall, a lengthy prison sentence will lead to a decline in [your] mood state’ despite prison providing you with an opportunity to remain abstinent from drug use and your mood improving on account of the structure and routine of prison (which she describes as ‘possible markers of the beginnings of institutionalization’).[17]
[17] Ibid.
Prospects of Rehabilitation
55You are now 32 years of age and have been in and out of prison for your entire adult life. You have little family support and no work history to which you can point. You have a history of mental illness and drug abuse.
56On a more positive note, you told Ms Lechner that you regret this offending and you have expressed some insight into the impact on the victim. You also told her that during your current period of confinement you are ‘making a concerted effort to focus on your rehabilitation’.[18] You have also stared to build a relationship with your father. You have completed some courses while on remand.[19]
[18] Ibid.
[19] Certificates of Achievement,
57In these circumstances, and giving full weight to your efforts, it is very difficult to be at all optimistic about your prospects of rehabilitation which I assess as quite poor.
Current Sentencing Practices
58The court is required to have regard to current sentencing practices.[20] This is to promote consistency in sentencing.[21]
[20] Sentencing Act 1991 (Vic) s 5(2)(b).
[21] The Queen v Kilic [2016] HCA 48.
59The Court was referred to a number of appellate decisions in which offenders were sentenced for offences against section 22 of the Crimes Act involving the discharge of firearms.[22]
[22] R v Madex [2020] VSC 145; DPP v Le [2018] VSC 576; DPP v Graoroski [2018] VSCA 332; Zogheib v R [2015] VSCA 334; Cooper v R [2020] VSCA 288; Kelly v R [2020] VSCA 171.
60I have read each of these decisions and have been assisted in ascertaining the range of sentences that have been imposed in cases with some similarities to the present one. I note that such cases are only of limited assistance and each case must be disposed of in light of its own particular facts and circumstances.
Consideration
61Your counsel submitted that the general principle explained in the case of Bugmy[23] is applicable on account of your traumatic childhood. This principle was explained by High Court as follows:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[24]
[23] [2013] HCA 37, 15 [40] (‘Bugmy’).
[24] Ibid 15 [40].
62Importantly, the High Court also said:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.[25][25] Ibid 16 [44].
63Finally, the Court of Appeal has emphasised that:
[c]ircumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[26]
[26] Marrah v The Queen [2014] VSCA 119, 6 [16] (Redlich JA and Tate JA).
64Earlier in these reasons I summarised the extensive trauma to which you were exposed during your formative years. I also noted the opinion expressed by Ms Lechner that you have a tendency to respond ‘reactively and impulsively’ to events without considering the full implications of your actions. Ms Lechner attributes this in part to your cognitive immaturity which she in turn attributes to your childhood trauma. I accept this evidence.
65The decision to accompany your friend Mr Capouleas while in possession of a loaded gun on the night in question would appear be an example of such poor decision-making.
66However, as Ms Lechner also acknowledges your poor judgment on the night in question was no doubt adversely affected by being ‘off your face’ on drugs.
67In these circumstances it is appropriate to moderate the sentence I impose to a modest extent based on the application of Bugmy because the principle of general deterrence is of reduced significance. However, as the High Court accepted in that case, in many situations where the principle is applied in such a manner it will also be relevant to specific deterrence and community protection.[27] Yours is such a case. Your history of offending and less than complete acknowledgement of the circumstances of this offending lead me to the view that you must be specifically deterred from any future violent offending.
[27] Bugmy (n 23) 16-17 [44]-[45].
68I have also made a modest allowance in acknowledgement that you will likely find custody more difficult than would a person without your mental health conditions.[28]
[28] R v Verdins [2007] VSCA 102.
69You originally faced a charge of intentionally causing serious injury. When this was withdrawn in December 2024 you pleaded guilty to the remaining charges. The prosecution accepts that this should be considered an early guilty plea in the circumstances. Your guilty plea entitles you to a significant discount on sentence. It has a high utilitarian value as it saves considerable public resources that would be required if the matter went to trial. It also saves witnesses from the anxiety associated with a trial.
70The principle of totality has an important role to play. Not only do the two charges arise from the one set of circumstances, there is considerable overlap in the elements of the charges. It was the discharge of the firearm that made up both charge one and the ‘use’ of the firearm under charge 2. The sentence the court imposes must also reflect your ‘prohibited’ status.
71The relevant sentencing purposes are deterrence – both general and specific – as well as community protection. Specific deterrence is important in light of your criminal history. It is concerning that you had only been released from custody on 22 February 2024 which was less than 2 months before this offending. Further, you were released onto a community correction order. It is clear that previous sentences have failed to deter you.
72This is an appropriate case for the imposition of an aggregate prison sentence pursuant to s 9(1) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’). The two charges are founded on the same set of facts.
Orders
73Taking into account all relevant considerations including the maximum penalties and giving full weight to all matters of mitigation, I make the following orders:
(a) On charges 1 and 2, you are convicted and sentenced to an aggregate term of imprisonment of 4 years and 8 months.
(b) You will be eligible for parole after you have served 2 years and 10 months.
(c) On the related summary offence of contriving a final intervention order, you are sentenced to one month’s imprisonment to be served wholly concurrently with the head sentence.
(d) Pursuant to s 18 of the Sentencing Act, I declare that the 354 days you have served in custody since you were remanded on 17 May 2024 be reckoned as pre-sentence detention served in relation to the sentence imposed on this day.
(e) Pursuant to s 6AAA of the Sentencing Act, had you pleaded not guilty I would have imposed an aggregate term of imprisonment of 7 years with a non-parole period of 4 years and 2 months.
0
10
0