CRIMINAL LAW – Sentence – Guilty Pleas – Reckless conduct endangering life – Prohibited person in possession of a firearm – Summary offence also taken into account – Firearm aimed over the head of victim – Passage of bullet proximate to victim’s head but not causing any serious injury – Combined imprisonment and Community Correction Order – Fine for summary offence.
---
APPEARANCES:
Counsel
Solicitors
For the Crown
Ms Kristie Churchill
Office of Public Prosecutions
For the Accused
Mr David Gray
Geoff Clancy Solicitors
HER HONOUR:
Introduction
Jordan Bourke, you have pleaded guilty to an indictment containing offences that occurred in Wodonga, Victoria. Charge 1 alleges that on 15 November 2018 you without lawful excuse recklessly engaged in conduct that placed Dusty Lyons in danger of death by discharging a firearm in the direction of and in close proximity to him. This charge is brought pursuant to s 22 of the Crimes Act 1958 (Vic). The maximum penalty for that charge is ten years’ imprisonment. Charge 2 alleges that on the same date, you, being a prohibited person, possessed a firearm. It is brought pursuant to s 5(1) of the Firearms Act1996 (Vic) and also carries a maximum sentence of ten years’ imprisonment. That charge relates to the firearm that you had in your possession at the time of the Charge 1 offence. Application was made to have a further summary offence taken into account, under s 145 of the Criminal Procedure Act2009 (Vic), being a charge that on 23 and 24 November 2018, at Wodonga, you did possess cartridge ammunition whilst not being the holder of a licence under the Firearms Act 1996 or a permit under s 58A. That charge carries a maximum sentence of 40 penalty units.
The offences on the indictment took place outside neighbouring premises at 27 Hague Road, Wodonga, not far from where you lived.
The events of 15 November 2018
At the time of the events before the Court, you resided in a house at 31 Hague Road in a suburban street in Wodonga. You owned the house jointly with your former partner, Jessie Thompson. You and Jessie Thompson had separated from one another some months previously. The breakdown of that relationship was partly caused by methylamphetamine abuse that the pair of you were engaging in at that time.
Your immediate next door neighbour was Larissa Simms at 29 Hague Road. There was a wooden fence dividing your property from her residence. There was a block of units next door to Larissa Simms at 27 Hague Road and the entrance to those units was the scene of the crime in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading DPP v Bourke
Sign in free to access the full text
Details
AGLC
DPP v Bourke [2020] VSC 130
Case
[2020] VSC 130
Decision Date
CaseChat Overview and Summary
The case before the court involved the Director of Public Prosecutions as the prosecutor and Bourke as the defendant. The dispute centred around Bourke's possession of a firearm and reckless conduct endangering life. The matter was heard in the relevant Australian court, with Bourke entering a guilty plea to the charges against him. The key legal issues the court had to address were the appropriate sentencing for Bourke’s actions, particularly given the dangerous nature of his conduct and his status as a prohibited person in possession of a firearm.
The court needed to consider the severity of Bourke's offence, which involved aiming a firearm over the head of a victim, and the fact that a bullet passed dangerously close to the victim's head without causing any serious injury. Additionally, the court had to account for a summary offence that was also taken into consideration. In determining the appropriate sentence, the court weighed various factors, including the seriousness of the offence, Bourke's guilty plea, and the potential for rehabilitation. The court ultimately decided on a combined sentence of imprisonment and a Community Correction Order, alongside a fine for the summary offence.
In its reasoning, the court emphasised the gravity of possessing a firearm and engaging in reckless conduct, particularly given Bourke's status as a prohibited person. The court noted the significant risk posed to the victim and the community, despite the fact that no serious injury resulted from the incident. The court imposed a fine and a custodial sentence, recognising the need for both punishment and deterrence, while also providing an opportunity for Bourke’s rehabilitation through a Community Correction Order. The court concluded that this balanced approach would adequately address the offence and its circumstances.
The final orders of the court included a sentence of imprisonment for a specified period, a Community Correction Order, and a fine for the summary offence. The court also imposed additional conditions on Bourke’s release, aiming to ensure public safety and facilitate his rehabilitation.