Fares v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0204

ALLAN FARES	Applicant
v
THE KING	Respondent

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JUDGES:	ORR, KAYE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2024
DATE OF JUDGMENT:	28 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 108
JUDGMENT APPEALED FROM:	[2022] VSC 554 (Tinney J)

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CRIMINAL LAW – Appeal – Conviction – Murder (2 charges), attempted murder (2 charges) and intentionally causing serious injury – Tendency evidence – Defence adduced evidence at trial of character and disposition of co-accused’s father – Prosecution relied on evidence in cross-examination and final address – Whether prosecution’s use of character evidence invited jury to engage in impermissible tendency reasoning – Whether trial judge erred in declining to direct jury not to use evidence as tendency evidence – Whether substantial miscarriage of justice – Leave to appeal refused.

Evidence Act 2008, s 97.

Awad v The Queen (2022) 275 CLR 421; Baini v The Queen (2012) 246 CLR 469, considered.

CRIMINAL LAW – Appeal – Sentence – Murder (2 charges), attempted murder (2 charges) and intentionally causing serious injury – ‘Dreadful’ case – Life imprisonment – Non-parole period 27 years – Accused aged 21 years at date of offence – Whether judge failed to properly consider youth and maturity of accused as mitigating factor in sentencing – Whether trial judge engaged in two-stage sentencing – Whether trial judge erred in approach to standard sentence provisions – Whether sentence manifestly excessive – Leave to appeal refused.

Sentencing Act 1991, ss 5, 5A, 5B; Crimes Act 1958, s 3.

DPP v Pan [2022] VSCA 98, distinguished; Azzopardi v The Queen (2011) 35 VR 43; Brown v The Queen (2019) 59 VR 462; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; R v Kilic (2016) 259 CLR 256, considered.

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Counsel
Applicant:		Ms G F Connelly with Ms A Balkin
Respondent:		Ms D I Piekusis KC with Ms S Lenthall
Solicitors
Applicant:	Galbally & O’Bryan
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

ORR JA
KAYE JA
T FORREST JA:

The applicant, and his co-accused Jacob Elliott (‘Elliott’), were each convicted by the jury empanelled on their trial, of two charges of murder, two charges of attempted murder, and one charge of causing serious injury intentionally.
Following a plea made on his behalf, the applicant was sentenced to a total effective sentence of life imprisonment, with a non-parole period of 27 years as follows:

Charge Offence Maximum Sentence Cumulation

1 Murder Life imprisonment Life imprisonment Base

2 Murder Life imprisonment Life imprisonment Nil

3 Attempted murder 25 years’ imprisonment 12 years’ imprisonment Nil

4 Attempted murder 25 years’ imprisonment 12 years’ imprisonment Nil

8 Causing serious injury intentionally 20 years’ imprisonment 5 years’ imprisonment Nil

Total Effective Sentence: Life imprisonment

Non-Parole Period: 27 years

Other relevant orders: Declaration (sentenced as a serious violent offender on charges 2–4, 8)

The co-offender, Elliott, was sentenced to a total effective sentence of life imprisonment, with a non-parole period of 29 years.
A third accused, Moussa Hamka, was convicted by the jury, of one charge of assisting an offender following a murder. On the hearing of his plea, he was also arraigned on, and pleaded guilty to, a single charge of being a prohibited person possessing a firearm. Following a plea, he was sentenced to a total effective sentence of 6 years’ imprisonment, with a non-parole period of 4 years.[1]
[1]DPP v Hamka [2022] VSC 609.
The applicant seeks leave to appeal against conviction on one ground:
Ground 1: A substantial miscarriage of justice was occasioned by:
(a)the prosecution inviting the jury to reason from evidence of Nabil Maghnie’s character and disposition that he directed Jacob Elliott to arrange with the applicant to shoot at people in circumstances where that evidence was not admitted or admissible as tendency evidence; and/or
(b)the learned trial judge erroneously declining to direct the jury not to use evidence of Nabil Maghnie’s character and disposition as tendency evidence in circumstances where a request had been made that he do so and where there were:
i.not good reasons for not doing so; and
ii.substantial and compelling reasons to do so.
The applicant seeks leave to appeal against sentence on three grounds:
1.The learned sentencing judge erred in evaluating the objective gravity of the applicant’s offending on the basis he had a motive of vengeance or retribution.
2.The sentencing judge erred in principle in his assessment of the gravity of the offending in that he:
a)classified charges 1 and 2 on a scale of seriousness relative to the standard sentence;
b)engaged in an assessment of the charged offences, including charges 1 and 2, by reference only to objective factors; and
c)evaluated whether the offending was ‘worst category’ (and thereby amenable to the imposition of the maximum penalty) by reference to objective factors.
3.The sentences imposed on charges 1 and 2 (and therefore the total effective sentence) are manifestly excessive in all the circumstances.

Circumstances of offending

At 1:05 am on 14 April 2019, Ali Maghnie (‘Ali’) was evicted by security employees from the ‘Love Machine’ Nightclub, which is located on Chapel Street, Prahran. As he was being ejected, an altercation took place between Ali and the security staff. He was observed to be angry, and was heard by a staff member to call out ‘You are all fucked, I’m coming back’.
Following his ejection from the nightclub, Ali made a series of telephone calls to family members, including to the co-offender Elliott, who is his half-brother, and to their mutual father, Nabil Maghnie (‘Nabil’). In those telephone calls, Ali complained about being thrown out of the nightclub, and claimed that he had been beaten up by security staff. Nabil told Ali to get in a taxi and to go to Nabil’s apartment in Docklands.
At 1:21 am, Elliott telephoned Ali and spoke to him for a little over one minute. In the meantime, Ali had managed to hail a taxi cab, and travel to his father’s apartment in Docklands. A listening device, which had been planted in that apartment in respect of an ongoing investigation into Nabil, recorded a conversation between Ali and Nabil in which Ali claimed that the head of security at the Love Machine, Joey Hosri, had come from nowhere. Nabil called Hosri ‘a dog’. Some evidence was adduced at the trial that there was some hostility between the Maghnie family and Hosri.
In the meantime, Elliott left his home address in Bundoora and drove his vehicle to Wollert South. At the same time, the applicant drove his vehicle from Preston, and arrived at Wollert South at 2:00 am. The applicant and Elliott rendezvoused in Dewlea Street, Wollert. They both alighted from their respective motor vehicles, and got into a stolen dark green Porsche Cayenne SUV (‘the Porsche’), which had previously been left at that location for later use.
The Porsche then drove south, towards the city. At one point, the applicant alighted from the Porsche, and entered a stolen Suzuki Swift vehicle (‘the Suzuki’), and the two vehicles drove in convoy in the direction of the Love Machine. At about 3:00 am, the Suzuki was parked in Simmons Street, South Yarra, and the applicant entered the Porsche. From that point, the applicant drove the Porsche, with Elliott in the front passenger seat, in the direction of the Love Machine.
At 3:08 am, the Porsche made one trip south along Little Chapel Street past the entrance of the Love Machine. It then made four further trips north along Little Chapel Street, each time travelling past the entrance to the Love Machine where security guards and patrons were gathered. After the third such lap, the vehicle pulled to the left, some distance south of the Love Machine, and remained stationary for just under one minute. The vehicle then proceeded north, in the direction of the nightclub, at about 3:15 am. As the vehicle approached the Love Machine, two security guards, Ahmed Osmani (‘Osmani’) and Semisi Tu’itufu (‘Tu-itufu’), were standing outside the entrance to the Love Machine. A third security guard was standing in the gutter, and at the entrance, a queue of patrons was waiting to enter the club. A number of other patrons, who had left the club, were milling about on the street in close proximity.
As the Porsche approached the Love Machine, Elliott prepared to fire in the direction of it. He wound down the window, and, holding a loaded .32 calibre Mauser semi-automatic pistol in both hands, pointed it through the window. It was aimed level with the body height of a group of people standing outside the Love Machine. As the vehicle drove slowly past them, Elliott discharged four shots at them at close range in quick succession over the course of about one second. One of those shots struck Osmani in the head, and another shot struck a patron, Kur Arow (‘Arow’), also in the head. A third shot struck the security guard, Tu-itufu, in the right shoulder. The fourth shot struck a patron, Ukash Ahmed, to the arm, causing a through-and-through injury, and then struck the arm of another patron, Ali Shohani.
Immediately after the shots were fired, the Porsche accelerated away from the area and returned to Wollert, where it was dumped in Highpark Drive and set alight. The applicant and Elliott each returned to their respective homes in their own vehicles.
Subsequently, on 17 April 2019, a Suzuki Swift vehicle, that was parked near the Suzuki vehicle that had been left there by the applicant on the night of the killings, was destroyed by fire.
As the Porsche left the scene of the shooting, Osmani and Arow each lay mortally wounded on the roadway. Tu’itufu, who had been shot in the shoulder, ignored his own pain and attempted to provide assistance to the two badly wounded men. He also endeavoured to ensure that the other patrons returned back inside the club, in order to protect them.
Osmani and Arow were each conveyed by ambulance to the Alfred Hospital. Osmani had sustained a gunshot wound to the head, with the projectile having entered above his right eye and exited through the left temporal spine. The injuries were unsurvivable, and he was pronounced deceased at 6:41 am on 14 April 2019. Arow had sustained a gunshot wound to the right mastoid bone of the skull. The spent projectile was located in the skull. He was treated at the hospital, but his injuries were also unsurvivable, and he was pronounced deceased on 19 April 2019.
Tu’itufu was also conveyed to the Alfred Hospital for treatment. At the time of the trial, he continued to have ongoing physical symptoms in the shoulder, with difficulties with moving his arm above his shoulder, and suffering chronic pain.
Ahmed was treated at the Royal Melbourne Hospital for the gunshot wound to his right forearm, and Shohani was treated at the Northern Hospital for a gunshot wound to his left forearm, which involved a fracture to the radius.
The prosecution case on the two murder charges was that Elliott fired the multiple shots into the group of people outside the nightclub, with the intention of either killing them or causing really serious injury to them. The applicant was charged on the basis that he was a party to an agreement, arrangement or understanding with Elliott to discharge the firearm at the group of people outside the nightclub with that intention.
At the trial, there was no dispute that Elliott was the passenger inside the Porsche vehicle, that he discharged the firearm four times, and that the applicant was driving the vehicle. In the case of Elliott, the critical question was whether the prosecution could prove, beyond reasonable doubt, that when he discharged the firearm four times, he did so with the requisite intention. Similarly, the critical issue in the case against the applicant was whether he was a party to an agreement, arrangement or understanding with Elliott that the firearm be discharged with that intent. In essence, the case of each of the two accused was that their intention was that Elliott would fire warning shots as they drove past the Love Machine, but that, by accident, Elliott unintentionally shot each of the four victims. In support of that defence, Elliott gave evidence that after Ali had been evicted from the Love Machine, his father Nabil had contacted him and directed him to drive past the nightclub and discharge warning shots into the air as retribution.

APPLICATION FOR LEAVE TO APPEAL CONVICTION

The proposed ground of appeal against conviction is directed to a proposition, put by the prosecutor to Elliott in cross-examination, and repeated in final address, that if in fact Elliott was directed by Nabil to attend outside the nightclub by way of retribution, Nabil was the kind of person who would have told Elliott to shoot people outside the Love Machine by way of retribution for the nightclub’s treatment of Ali.
For the purpose of addressing that ground, it is necessary to summarise the evidence in the trial, concerning the circumstances of the shooting, in order to provide appropriate context to the passages in the cross-examination and the final address that are relied on by the applicant.

Summary of prosecution evidence

The first witness to give evidence in the trial was Ali Maghnie. Most of his evidence-in-chief consisted of a VARE that had been conducted on 27 August 2019, a fortnight after the events that are the subject of this case. On the VARE, his recollection was quite limited. He recalled attending the Love Machine, becoming intoxicated, and being thrown out of the club. He then telephoned his father Nabil, to let him know what happened. His father told him to proceed to his apartment. When Ali arrived there, his father told him to eat and drink, and then he fell asleep. In the VARE, Ali said that his father did not like him drinking, and gave him a ‘lecture’, after which he went to bed. He said that after waking up the next day, he first learnt about the shooting at the nightclub when he went through Facebook, on which people had posted information about the incident. Ali also said that Elliott was his half-brother, and that they were very close to each other.
In his evidence at the trial, Ali maintained that he then had little recollection of the evening. He identified himself in various passages of CCTV footage that had been taken from the nightclub. He said he could not remember anything about the dispute with the security guards, or being escorted by them across Little Chapel Street. He was not able to recollect contacting his father or going to his father’s apartment in Docklands. He could not recall trying to contact Elliott on the telephone after he had left the nightclub, and he could not recall why he might have tried to contact him.
Constantine Stamatiadis was employed as a security guard at the Love Machine nightclub. On the night of 13 April 2019, he was working mainly on the entrance to the nightclub. In the early hours of the following morning, while he was standing in position, he heard a radio call, stating that there was an argument inside the premises. Mr Stamatiadis saw a few guards go inside, and take a man outside, where they had ‘a bit of an argument’. The man was asked to leave, but he did not do so, and he kept returning to the nightclub. The guards then took him again across the road, and one guard punched him. As a result, the man (Ali Maghnie) fell to the ground, but got up again, and walked away whilst speaking on his telephone.
Mr Stamatiadis was upstairs at the premises when he first became aware that the shooting had taken place. He went outside and observed some people that were injured.
As we have mentioned, Semisi Tu’itufu was one of the security guards working on duty at the nightclub on the evening in question. He was also positioned at the front door of the premises. During the early hours of 14 April, he observed a patron being escorted from the club by about five security guards. They brought him downstairs and took him across the road. The man was very aggressive and manic, but he calmed down when he crossed the road. Tu’itufu went across the road to assist. At one point, he observed one of the security guards kicking the man, who was on the ground. Tu’itufu and his fellow security guard, ‘Aaron’, ran across the road to send the other guards back to the front, and, in doing so, they managed to calm the man down, but he was very angry. As he walked away, the man yelled out, ‘You’re all fucked, I’m coming back’.
Mr Tu’itufu returned to work at the door. He was present when the Porsche vehicle drove past and discharged five or more shots. One of those shots struck him in the right shoulder. Tu’itufu saw two other persons, who he called Aaron and Richard, both fall to the ground. He saw one of the patrons lying on the ground in the roped area. Tu’itufu attempted to assist him, and he also tried to stop other people leaving the club, because he thought it was safer for them to remain inside it. He then went back to check on Aaron. It was at that point that Tu’itufu realised that he himself had been shot.
Eventually, Tu’itufu was conveyed by ambulance to hospital, where he underwent two operations on his right shoulder. He said that although he had gone back to work as a forklift driver, he had difficulty moving his right arm and performing mundane tasks, such as putting his clothes on and shaving. He also had difficulty sleeping at night on his right-hand side. As a result of his disabilities, he has had to learn to use his left hand.
The signed statement of the witness Aboudi El Houli was read by the prosecutor to the jury in evidence. Mr El Houli was also working as a security guard at the Love Machine on the evening of 13 April 2019. While he was working there, he saw security guards escort a man out of the nightclub and take him across the road. Subsequently, at about 3:15 to 3:30 am, Mr El Houli was working at the entrance to the premises. As he did so, he heard four or five noises that sounded like ‘pop, pop, pop, pop’, and he saw a black four-wheel drive vehicle driving past. Mr El Houli said everyone started screaming, and he could see people on the ground. He ran inside. When he went back outside, he saw Aaron on the ground, and also a dark coloured person who had previously been speaking to one of the security guards.
Another security officer at the nightclub, Jamie Kutniewski, gave evidence that he was inside the nightclub at the time of the shooting. He heard three or four shots, then saw a black vehicle speed off, with a person in the front window ‘just hanging out’ of it. In cross-examination, Mr Kutniewski said that he only saw a glimpse of the vehicle before it disappeared from view. He agreed that his observation to that effect could be mistaken.
Sarah Flanagan-Jerez attended the Love Machine in the early hours of 14 April 2019 with some girlfriends. At the time of the shooting, she was standing in a line of patrons, queuing up to attend the nightclub. In her evidence, she identified herself in a photograph (Exhibit U) of a queue of patrons, waiting to get into the nightclub. She was looking down at her phone or purse, and, when she looked up, she saw a vehicle travelling in front of her. The vehicle slowed right down, the passenger window was wound down, the passenger then turned his body, and, holding a small black pistol, fired about three shots. At that point, the vehicle was about two to three metres from Ms Flanagan-Jerez. After the shots were fired, the passenger pulled back into the vehicle, the window was wound up, and the vehicle drove off. Ms Flanagan-Jerez said that the passenger who fired the shots was wearing a balaclava. In cross-examination, she said that she thought the passenger was right-handed, from the way he was holding the gun, but he had both hands on the weapon.

Casey Olierook was also standing in a line of patrons at the Love Machine nightclub when the shooting took place. She also identified herself in the photograph, which was Exhibit U. Ms Olierook saw a few light coloured cars drive past, and then a dark coloured car approached. She observed in the passenger seat a person who was either dark or wearing very dark clothing with a dark mask. The window of the vehicle was either half way or all the way down. When the vehicle was five or six metres away, she heard gunshots. She then saw a security guard on the ground. Everyone was in a panic and there was screaming and running everywhere.
The prosecutor next read into evidence the statements of two witnesses. In her statement made shortly after the incident on 14 April, Maria Slattery said that after she had entered the Love Machine nightclub on the morning of 14 April, she went back outside to where her friends were still waiting to get in. As she did so, she heard two gunshots. She said the driver of the vehicle from which the shots were fired was African. She said that after she heard the shots, she saw a security guard and another person on the ground. A person called out, ‘Get inside’, so she ran inside the club. She then ran back outside and saw the two people still lying down.
Ali Shohani also made a statement shortly after the incident on 14 April 2019. Mr Shohani was outside the nightclub at 3:05 am, lining up to enter it. As he did so, he heard a loud bang, followed by three more. After the first two bangs, he saw two security guards fall to the ground. On the third bang, he felt a pain in his right arm. He looked up and saw a black Porsche four-wheel drive with the front passenger window down. A man was sitting in the passenger seat, wearing dark clothing. The Porsche then turned left into Malvern Road.
Mr Ukash Ahmed also made a statement on 14 April 2019. Mr Ahmed said that he and his friend, Ali Shohani, had walked towards the Love Machine at about 3:00 am. They stopped directly across from the entrance to the Love Machine, and Mr Ahmed attempted to call his cousin, who was inside it. He and Ali Shohani were about to then line up to enter the Love Machine, when Mr Ahmed felt his right arm went numb. He looked down, and blood was pouring out of his arm. He started to run towards Chapel Street, and could hear what he thought was fireworks, but he then realised they were gunshots. Mr Ahmed then sat down in a doorway on Chapel Street, and an ambulance was called to assist him.
Theodore Torosidis gave evidence that at 3:15 am on 14 April 2019, he was standing in a line, waiting outside the Love Machine nightclub with some friends. As they were talking amongst themselves, he heard about three bangs, and a car drove past. The vehicle was travelling very slowly. Mr Torosidis saw at least two people fall to the ground.
Taylan Aslan was standing across the road from the Love Machine on Little Chapel Street in the early hours of 14 April 2019. As he did so, he saw a black Porsche vehicle drive past, and he heard three or four shots. He saw a couple of the bouncers on the ground. He said that the Porsche stopped for about a second, and then drove off.
Michael Bukraba also made a statement on 14 April 2019. Mr Bukraba had previously been a sporting shooter and was familiar with the sound of gunfire. At 3:30 am on 14 April 2019, he was in his vehicle, parked in Bray Street, Prahran, when he heard three gunfire shots in quick succession. They sounded like the shots of a semi-automatic pistol. Mr Bukraba then heard a car speed off. He saw the headlights of a vehicle turn into Bray Street. It paused when it was alongside Mr Bukraba’s vehicle, as a result of which Mr Bukraba then drove off. He said that the other vehicle sped off, and, as it did so, he made a note of its registration number.
The other lay witnesses in the trial gave evidence as to events that occurred after the shooting. Irshad Khad and Nicholas Rowe each separately witnessed the burning of the Suzuki Swift vehicle on 17 April 2019 in Simmons Street, South Yarra.
Sara Mohammed gave evidence that, in 2019, she was in a relationship with Elliott. In answer to a number of questions from the prosecutor, Ms Mohammed professed not to have any recollection of a number of matters, about which she was asked non-leading questions. The prosecutor was then granted leave to cross-examine Ms Mohammed under s 38 of the Evidence Act 2008. She agreed that she made a statement to police dated 31 August 2019, and she also agreed that, in making the statement, she tried her best to tell the truth to police. In the statement, Ms Mohammed said that Elliott had had a ‘beef’ with Joey Hosri, who was the head of security at the Love Machine nightclub. If she ever said that she was going to go to the nightclub, Elliott would say something like, ‘Why are you going where that scumbag Joey Hosri is?’. Ms Mohammed also said that some time later, she saw a news article about the sons of an organised crime figure being involved in a shooting at the Love Machine nightclub, and she figured out that the article was about Nabile and his sons. Ms Mohammed asked Elliott where he was when the shooting happened, and he replied that he was with her. However, Ms Mohammed knew that Elliott was not with her on that night. Ms Mohammed said that soon after she saw that news item, Elliott messaged his father on a messaging application named Wickr.
In cross-examination, counsel for Elliott asked Ms Mohammed questions about Elliott’s relationship with Nabile. She agreed that Elliott used to talk about that relationship. She said that there was a point where Elliott was going ‘outta control’ for his father. She said that Elliott ‘just got off track’ when he met his father.
The balance of the prosecution case consisted of evidence concerning the investigation of the matters that were the subject of the charges against the applicant and Elliott. A number of witnesses were called in relation to that investigation, including: two police members who attended the scene; four medical practitioners who attended the wounded victims; a forensic pathologist; expert witnesses relating to DNA evidence, fingerprint evidence and ballistic evidence; a crime scene examiner; and a security analyst employed by Telstra who gave evidence concerning the use of call charge records to locate the position of the telephones used by Elliott, the applicant and others.
The informant, Detective Sergeant Luke Farrell, in evidence, produced a large number of recordings, including CCTV footages, recordings of intercepted telephone calls, audio recordings of listening devices at the Docklands apartment, transcripts of those audio recordings, still images of the vehicles engaged in the offending, and various maps and photographs.
In the course of his evidence, Detective Sergeant Farrell, in cross-examination by senior counsel for Elliott, acknowledged that Nabil Maghnie was a focus of the investigation into the shootings at the Love Machine from the outset. Sergeant Farrell agreed that, as far as the Homicide Squad was concerned, Nabil had a role in what had occurred at the Love Machine. Nabil had twice previously been shot, and he was a person who had a ‘quite regular intersection with the law’. Sergeant Farrell agreed with the proposition, put by counsel, that Nabil was a very violent man with a short fuse, that he had a number of previous convictions of being a prohibited person possessing a firearm, and that he had spent several periods of time in custody from December 2011 until August 2018. Sergeant Farrell also agreed that Nabil was fatally shot in January 2020.

Evidence of Jacob Elliott

Jacob Elliott gave detailed evidence as to the lead-up to the shootings at the Love Machine nightclub. He commenced by describing his family background. Elliott was born in January 2001. After his birth, he was brought up by his mother, and he did not meet his brothers and sisters until he was a teenager. He first lived with his father, Nabil, at that time. His relationship with Nabil was ‘up and down’. Nabil was very unpredictable at times, he used drugs, and he was involved in criminal activity. He had been shot twice. Elliott said that Nabil was always ‘extremely paranoid’, that he was hard on Elliott, and that Elliott was intimidated by him. At one point, Elliott resided with Nabil, but he then went to live with Nabil’s sister as a result of Nabil’s conduct towards him. At the time of the Love Machine shooting, he was living with his brother, Abbas.
Elliott then gave further evidence about Nabil’s conduct towards him. Nabile consistently took drugs, and would assault him. On one occasion when Elliott displeased Nabile, the latter punched him on the chin and started yelling at him. Elliott said that he was scared of Nabile, and that he would ‘very rarely say no to him’. If Nabil did not get his way, and did not get what he wanted, he would usually resort to violence. Elliott had seen Nabil with guns, at least two or three times a week, and sometimes every day. Nabil would have guns with him all the time, and would bring them out whenever he went for a drive.
Elliott said that before 14 April 2019, he had never used a firearm. The Mauser pistol, which he used in the Love Machine shooting, was given to him by his father in a backpack, which also contained a balaclava, gloves and ammunition. Elliott gave the backpack to the applicant to hold on to for his father.
Elliott said that he saw Nabil in the evening of Saturday 13 April 2019. Nabil was on drugs, he had not slept well, and, in such a condition, his moods would be more unpredictable than usual. Elliott said that on that evening, he went to the applicant’s house in Preston at about midnight, and they consumed cocaine together. After Elliott returned home, he received three calls from Ali, which he ignored, because he wanted to sleep. However, at 1:21 am, Elliott made a call to Ali, who told Elliott that he had been ‘jumped’ at the Love Machine nightclub. Ali said that he was then on his way to Nabil’s apartment.
Elliott then received a Ciphr message from Nabil. In his evidence, Elliott said that Nabil told him that he wanted Elliott to go and let off some warning shots at the front of the Love Machine. Nabil instructed him to get two stolen vehicles ready. Elliott, in his evidence, said that he did not want to follow his father’s instruction, but he also did not want to say no to him, because he knew that Nabil would get angry. He told his father that he was uncomfortable with the instruction, but Nabile said something like, ‘Shut the fuck up and get ready’. Nabil also told Elliott that he wanted the applicant to go with him, and, accordingly, Elliott messaged the applicant on Wickr. He told the applicant about the situation and that Nabil wanted them to go and let off some warning shots at the nightclub.
In his evidence, Elliott said that he received about five Ciphr messages from Nabil. In those messages, Nabil instructed Elliott as to how to proceed, including where to park the vehicles, and to set them alight after the shooting at the nightclub had taken place.
Elliott further said in his evidence that when he told the applicant what Nabil wanted them to do, the applicant started ‘freaking out’, saying that he did not want to do that. Elliott told the applicant they did not have any choice, because ‘my dad wants us to go’. Elliott, in his evidence, said that he understood the instruction from his father to be to go to the front of the nightclub, shoot in the air a few times to scare people, and then leave.
Elliott then gave detailed evidence as to how that plan was put into effect by meeting the applicant, who brought the backpack containing the gun, ammunition, balaclava and gloves, driving in the Porsche to collect the Suzuki vehicle, and then driving in the direction of the Love Machine nightclub. They then found the best place to park the Suzuki. Elliott got out of the Porsche and into the passenger seat, and the applicant got into the driver’s seat.
In his evidence, Elliott then said that once he got to the front of the Love Machine, Nabil started messaging him on his telephone, saying, ‘Where the fuck are ya, what the fuck’s going on’. Elliott said that they went around the club a couple of times and, each time they did so, he felt unable to proceed with the plan. However, he felt that he did not have any choice, because if he did not proceed with it, he would have to deal with his father, and he knew there would be consequences. He was wearing the gloves and balaclava from the backpack.
Elliott then, by physically demonstrating to the jury, described how he fired the gun from the backpack as they drove past the Love Machine. He said that he was ‘shooting just the roof or towards the air’. His intention was that the bullets would go ‘upwards’. He said that he did not see anyone get hit. He said that he did his best to adhere to the instructions he had been given. After he discharged the weapon, they departed the scene, and it was on the next day (that is, later that morning or afternoon) that he first learnt that people had died. In his evidence, Elliott said that after the shooting, he had further communications with Nabil. His father told him that because two people died, there would be a lot of ‘heat’ on them. Elliott followed his father’s instructions to dispose of the clothing that he had been wearing, and Nabil said that he would send someone to Elliott’s house to collect the firearm.
Elliott then gave detailed evidence as to what occurred after the incident, and his disposal of the items he used in it.
The prosecutor commenced his cross-examination of Elliott with questions as to his conduct after the shooting, which, it was suggested, was inconsistent with the conduct of a person who had accidentally shot four people. Elliott agreed that before the shooting, and after it, he had wanted to be part of his father’s world, and he knew what that world entailed. He agreed that the he and the applicant had been holding a gun for his father, and that he and the applicant had stolen vehicles placed around the area, ready for use.
The prosecutor then put to Elliott that he was prepared to be involved in Nabil’s criminal world. That question was objected to by counsel for Elliott, but the judge ruled that, because Elliott had said that his relationship with Nabil was the sole reason why he went to the Love Machine, it was permissible for the prosecutor to ask the question. In response to the question, Elliott said that he was prepared to be involved in the criminal world that his father occupied, but that he would rather not do so. He agreed that, on the night of the incident, Nabil, in effect, contacted him to do his ‘bidding’ in relation to what had happened to Ali at the Love Machine. Under further questioning, Elliott said that Nabil told him that he wanted him to get two ‘hotties’ (stolen vehicles) ready, and he wanted Elliott and the applicant to go to the Love Machine and let some warning shots off at the front of it. He said that his father pressed him to do it, and he felt that he had no choice.
The prosecutor then put to Elliott a series of propositions as to how he might have been able to avoid carrying out his father’s instruction. The prosecutor put to Elliott that he was ‘out the door’ very soon after he had received instruction from his father, and that he did not debate or give any resistance to the instruction given to him.
Elliott agreed that the two vehicles, that were used in the incident, had previously been stolen and had been placed at different locations, in the event that they were required to be used whenever Nabil needed them for criminal activity. The vehicles had false numberplates, and they had petrol cans filled with petrol, so that they could be destroyed. The keys to the vehicles were entrusted to the applicant, because he had a pretty clean record and did not have any relation to Nabil, so that he was the safer option in terms of retaining them. Elliott said that in fact he and the applicant had picked the vehicles up and left them at separate locations a couple of weeks before the shooting.
The prosecutor then asked Elliott a number of questions as to the contacts that he had with the applicant leading up to the shooting. In effect, Elliott said that they both felt that they had no choice but to comply with the instruction that Nabil had given to him. Elliott was concerned that, if they did not do so, Nabil would bash the applicant and himself. As a result, Elliott pressured the applicant to comply with Nabil’s instructions.
The prosecutor then questioned Elliott as to the detailed steps that were taken to prepare for the shooting at the nightclub, including precautions to avoid leaving the applicant’s DNA on the vehicles used, and the selection of the location at which to leave the Suzuki before proceeding to Chapel Street. In answer to questions about the first three times on which the Porsche was driven up Little Chapel Street, Elliott agreed that each time they passed the nightclub, as passenger he was seated on the side closest to the entrance to the nightclub, and there were a number of people outside the nightclub. Elliott stated that during those three passes of the nightclub, he and the applicant were apprehensive about proceeding with the plan, but he felt he needed to do so because otherwise his father would be angry with him, and, based on past experience, would ‘bash’ him. Elliott disagreed with the proposition that they drove past the nightclub on three occasions in order to see whether there were security guards among the group of people who were outside the premises.
Counsel then questioned Elliott about the CCTV images of the four occasions on which he drove past the Love Machine, before firing the fatal shots on the fifth pass. Elliott rejected the proposition that, on those first four passes, he was scouting to ascertain where people were standing. Elliott agreed that if his intention was only to fire warning shots, he could have done so from the intersection of Little Chapel Street and Malvern Road. He said that when he discharged the firearm, he thought that he was firing into the air, but he agreed that he did not consider whether the sunroof might have been fit for the purpose of having shots fired through it. Under further cross-examination, Elliott agreed that the CCTV footage detected him pointing the gun towards the people, who were standing on the road, but he said that it was not his intention to shoot them.
The prosecutor then asked Elliott a number of questions about the departure from the scene, and the incineration of the wrong Suzuki vehicle. The prosecutor put to Elliott that what occurred at the Love Machine was a well-executed plan to shoot people standing outside the club, and that Elliott had fired his gun four times in the direction of people with the intention to kill them.
The prosecutor then asked Elliott, what did he say happened that made his plan of shooting warning shots go astray, to which Elliott responded, ‘I wasn’t in the right state of mind to be in that position and as a result of that people ended up dying’. He said he did not intend to kill anyone, that he felt under pressure, and that he now felt terrible about what had occurred.
The prosecutor then asked questions, directed to the role of the applicant. Elliott agreed that, after the shooting, and until they were both arrested, they continued to spend time together. The applicant did try to distance himself from Elliott and Nabil at one stage, and there were periods of time when he did so.
The prosecutor then questioned Elliott as to Nabil’s response after the shooting. He said his impression was that his father blamed him for what had occurred. Elliott himself blamed his father for what had happened, and, as a result, their relationship became a bit more complicated. He agreed that, in his evidence-in-chief, when explaining the more difficult relationship with his father after the shooting, he did not attribute that difficulty to what had occurred at the Love Machine.

Elliott then confirmed his earlier evidence, that Nabil used drugs on a regular basis, that he always had anger problems, which became more problematic when he used drugs, that he had been shot twice previously, that he had been to gaol on a number of occasions, that he was paranoid, and that he was capable of extreme and uncontrolled anger. He agreed that his father had called Joey Hosri a scumbag, and had said that his security guards were ‘weak cunts’. He also agreed that the ejection of Ali from the nightclub was the type of incident that would cause Nabil to ‘go to anger’.
There then followed the passage of the cross-examination which is the focus of the proposed ground of appeal:
See I want to suggest to you that if you received some order or directions or whatever you want to call it from your father on this night, your father was the type of man who could be well capable of telling you to go down there and shoot people. What do you say to that proposition?---I can’t speak to that because I can’t speak to something that’s never happened. So.
Well you’ve anticipated my next question. Is that what he said to you? Go down there and shoot people. This won’t be tolerated?---No, no I disagree with that.
Because of course that’s exactly what you did, isn’t it? You went down there and shot people — you say accidentally, I follow that. My suggestion to you is that you did it deliberately?---Well I disagree with that.
All right. But he was a very unpredictable, extreme, angry man. You’d agree with that?---Yes.
Elliott then agreed that he did want to make Nabil happy, that he was happy living within Nabil’s world, that he was engaging in criminal conduct for Nabil, and that he picked up the vehicles and held a gun for Nabil.

Prosecutor’s address

At the conclusion of evidence, the prosecutor made a thorough and comprehensive final address to the jury. It is necessary to summarise it in some detail, in order to give an appropriate context to the section of it which is the subject of the ground of appeal.
The prosecutor commenced by outlining the circumstances in which the events of 14 April 2019 occurred. In doing so, he noted that the relevant parties, including Elliott and the applicant, used encrypted forms of communication, which was an indication of the kind of relationship they had amongst themselves at that time. The prosecutor noted that Nabil was described, by Elliott, as a man who was violent, unpredictable, quick to anger, a drug user and paranoid, and who carried guns, and had been shot, ultimately three times. Elliott had described him as intimidating, dominant, and capable of extreme anger. The prosecutor also noted that, about a month before the shooting, Nabil arranged for the applicant and Elliott to obtain stolen vehicles, change the numberplates on them, and have petrol cans ready to incinerate them. The prosecutor observed that Elliott and the applicant were thereby participating in such activities, that were part of Nabil’s criminal life.
The prosecutor then referred to the evidence of Elliott, that on 14 April 2019 he received a set of instructions from Nabil. The prosecutor further observed that the jury might think Nabil was ‘that type of fella … quick to anger, capable of extreme anger, unpredictable’. The prosecutor reminded the jury of the ready response made by both the applicant and Elliott to the instruction, so that both of them were on the move, even before Ali had reached Nabil’s unit in Docklands.
The prosecutor then noted that he had put to Elliott, but Elliott had rejected, the proposition that if Nabile demanded anything of him, it was to go to the Love Machine and pay the club back for its conduct to Ali by shooting people. Having noted that Elliott rejected that proposition, the prosecutor stated:
But consider it when you look at all the evidence in this case about what he might have been told to do. The type of man Nabil Maghnie is, but also importantly, what actually happened when they got down there.
The prosecutor then described to the jury how the Porsche vehicle made four passes of the premises. He submitted that Elliott and the applicant, in doing so, were checking out who was outside. They then waited until the road cleared ahead of them in Little Chapel Street, before proceeding to commit the shooting. No shot went above the height of a person, and Elliott had aimed his weapon from a slow-moving Porsche, with his hand out the window. The discharge of the firearm was a conscious, voluntary and deliberate act.
The prosecutor submitted that the jury should weigh the objective facts against Elliott’s claim that he did not intend to shoot any person when he discharged the weapon. He submitted that Elliott’s intention was crystal clear, that he shot at the people outside the nightclub from close range, and people were killed as a result. It was a well-executed, well thought out exercise in which, having carried out the shooting, the applicant and Elliott were able to make their way back to Wollert. The subsequent listening devices and telephone intercepts did not detect one word of regret from Elliott or the applicant about what had transpired at the nightclub.
The prosecutor then concluded by submitting that what occurred in the shooting was a gross overreaction to the ejection of Ali from the nightclub. The prosecutor noted that Elliott claimed that Nabil orchestrated the attack, and that the instruction to fire the shots was given by Nabil. In respect of that evidence, the prosecutor contended:
Nabil Maghnie was not a man to say no to, you might agree with that. Again, described as paranoid, violent capable of extreme anger, quick to anger. He carried guns. A crime figure. A criminal world that Mr Maghnie was in. Mr Elliot[t] said you either do what he says or you lie about it or try to.
The prosecutor submitted that the jury should reject Elliott’s claim that he had no choice but to follow the direction given to him by Nabil. In that respect, the prosecutor noted that Elliott was ‘out the door that quick’, and in Wollert South by 1:33 am. He submitted that Elliott and the applicant each had been involved in Nabil’s criminal activities by holding the gun, obtaining stolen vehicles, and leaving them in the street. He then put the following argument to the jury, which is the subject of the proposed ground of appeal:
What happened at the Love Machine — in our submission — had no hallmarks of some ham-fisted, amateur hour, second-rate exercise. Given what you know about Nabil Maghnie, what you’ve been told about him, you might conclude that he is in fact — that is, Nabil Maghnie is in fact — the type of person who might order such an attack as happened.
Not warning shots, but shootings, at people. As a message. ‘Don’t disrespect my family.’
The prosecutor submitted that the evidence demonstrated that the applicant was a ready and contributing participant in the attack on the Love Machine, and that he was a party to an agreement, arrangement or understanding to deliberately shoot at people at the nightclub with an intention to kill them or cause them really serious injury. The applicant had been implicated with Elliott in holding a gun for Nabil, in securing stolen vehicles, dealing with false numberplates for them, and having the vehicles available for use. It was the applicant’s job to hold onto the keys for the cars. When he was contacted in the early hours of 14 April 2019, he had a choice, and he exercised that choice to join up with Elliott.
The prosecutor again discussed why the four passes were made outside the Love Machine, and repeated the submission that he had earlier made, that the intention was not to fire warning shots, but to fire shots at persons outside the nightclub. The prosecutor also reiterated that, after the event, there was no mention by the applicant, in any of the telephone intercepts or listening device recordings, to the effect that he had not intended what did ultimately occur at the nightclub. In that respect, the prosecutor noted that, after the shooting, the applicant and Elliott continued to associate together. Accordingly, it was submitted that the applicant was fully complicit in the arrangement with Elliott to fire shots at persons outside the nightclub with the intention of killing them or causing them really serious injury.

Defence submissions in final address concerning Nabil Maghnie

For the purpose of addressing the proposed ground of appeal, it is only necessary to make brief reference to the final addresses made on behalf of the two accused persons.
In her final address on behalf of Elliott, senior counsel outlined to the jury, in some detail, the timeline of the various contacts that took place between the parties after Ali had been ejected from the Love Machine nightclub. She referred to three calls between Nabil and Elliott, including one from 1:08 pm on 14 April, and noted:
Those three calls are all between Mr Maghnie and his son. Again, he does all the talking. He’s pretty my way or the highway comes to mind when you listen to Nabil Maghnie. So, it’s actually not preposterous or unrealistic to suggest that in that period of time Mr Elliott received some quite specific instructions about the way Nabil Maghnie wanted this done. Because that’s totally consistent with the person that you can glean from the telephone intercept material.
Counsel then referred to the submissions, made by the prosecutor, that, notwithstanding the direction given by Nabil, Elliott and the applicant could have used a number of different pretexts in order not to carry out the shooting at the Love Machine. She then submitted:
Well, it’s a blessing because we all need family and Mr Elliott’s no different but of course it’s a curse for exactly the reasons that I’ve been talking to you about, because it makes his story and his narrative so far from conventional that your first reaction is to just really dislike him. And it’s a curse obviously because only a father like Nabil would ask his son to do what he asked via Ciphr sometime after 1.11 on 14 April.
Senior counsel then reminded the jury of Elliott’s evidence, that although he did not want to comply with his father’s instruction, his father was dismissive of his reluctance to do so, and told him to ‘Shut the fuck up and get ready’.
In final address on behalf of the applicant, counsel commenced by submitting that the jury should conclude that there was a reasonable possibility that the applicant only agreed that warning shots would be fired to scare people. Counsel referred to the evidence, given by Elliott, that, when he contacted the applicant and told him that his father wanted them to go and let off warning shots at the club, the applicant expressed reluctance to participate, but Elliott told him that they had no choice, because Nabil wanted them to do so.
Having reminded the jury of the evidence given by Elliott to that effect, counsel made the following submission:
What we do know about Nabil Maghnie, who was the target of a police investigation around the clock. He’d been shot twice. He was dangerously unpredictable, even more so when he was on a drug bender. You might think he was the kind of person you don’t say no to.
Counsel then submitted that Nabil had ‘dragged [the applicant] further into the web’ by getting him involved and putting stolen vehicles in position in case they were needed. Counsel stated:
Once that happened you might think it was hard to say no when your best mate, the son of a dangerous gangster, says you have no option but to drive one of these stolen cars so Jacob can scare some people. If you sup with the devil you need a long spoon.
Counsel for the applicant then proceeded to make detailed submissions concerning a number of aspects of the evidence. In his concluding arguments to the jury, he made seven short points, the first two of which are relevant to the proposed ground of appeal. Counsel submitted to the jury:
Firstly, you don’t say no to Nabil. Two, Nabil wouldn’t want the heat that would c[o]me with killing people.

Judicial directions concerning Nabil Maghnie

At the conclusion of the evidence, the judge had lengthy discussions with counsel concerning the directions which, it was submitted, were to be given to the jury. Senior counsel for Elliott sought a direction, under s 29 of the Jury Directions Act 2015, that the jury should not make improper use of other misconduct by Elliott, including his involvement in the theft of motor vehicles, use of false numberplates, possession of firearms, use of drugs, and use of encrypted means of communication. Senior counsel submitted that the jury should be directed that it must not infer from that evidence that Elliott was the kind of person who was likely to have committed the offences charged. Counsel for the applicant sought the same direction in respect of his client.
In his charge to the jury, the judge referred to the evidence relating to the use, by the applicant and Elliott, of stolen motor vehicles, their use of encrypted apps, and their drug use. His Honour directed the jury that it should keep that evidence in perspective, that it was led for the limited purposes which the judge had outlined to the jury, and that the jury must not reason that, because the accused person had committed other criminal offences, or placed himself in the criminal world, or associated with Nabile Maghnie, or used encrypted apps, or had possession of a firearm, that he was therefore the sort of person likely to have committed the offences charged.
At the next break, senior counsel for Elliott requested that the judge give a further direction, under s 29, concerning the connection of Elliott with Nabil, who was a significant criminal. Counsel submitted that the jury should be directed that it must not reason that, because of the type of person Nabil Maghnie was, that he gave an instruction to Elliott to go and shoot people, and that because Nabil was Elliott’s father, Elliott was likely to have acted on that instruction. It was submitted that the prosecutor, in his final address, had invited the jury to engage in propensity reasoning to that effect, by contending that, given what the jury knew about Nabil, it might conclude that he was the type of person who might order the attack which in fact occurred. Counsel noted that the prosecutor had not sought to rely on s 97 of the Evidence Act 2008 in advancing that proposition.
After giving the matter overnight consideration, the judge ruled that he would not give the jury the additional direction sought by counsel for Elliott.

Ground 1 of application for leave to appeal against conviction — submissions

In support of ground 1, counsel for the applicant accepted that it was legitimate for the prosecutor to rely on the evidence relating to the character of Nabil for credit purposes, by casting doubt on the veracity of Elliott’s evidence about the instruction, given to him by Nabile, to fire warning shots. However, it was submitted, the resort, by the prosecutor, to that evidence to render it more likely that there was a direction, given by Nabil to Elliott to shoot people, was an impermissible resort, by the prosecutor, to tendency reasoning.
Counsel for the applicant commenced by noting that, in the course of the trial, a significant amount of evidence was adduced, which portrayed Nabil in an unfavourable light. In particular, the evidence of telephone intercepts that were in place in respect of Nabil’s telephones, listening devices at his Docklands premises, the use of stolen vehicles, and the use of Ciphr communications, all reflected on the character of Nabil, and, by association, on Elliott and the applicant. Counsel noted that all of that evidence was adduced for purposes other than tendency reasoning, and, as such, was admissible in evidence. It was in that context that Elliott gave evidence concerning the character and criminal connections of his father Nabil. In particular, it was relevant to demonstrate that Elliott did not return to the Love Machine to pursue a motive of his own, but rather, in order to obey the instructions, which were given to him by his domineering father. However, it was submitted, neither accused sought to rely on the evidence relating to Nabil’s disposition in order to prove or support the content of the instructions, which Nabile had given to Elliott.
Counsel submitted that the passage in the cross-examination of Elliott, and the passage in the final address of the prosecutor, to which we have referred, amounted to an impermissible invitation by the prosecution to the jury to engage in tendency reasoning in determining the content of the direction, which Elliott said he had been given by Nabil. Specifically, it was contended, the cross-examination of Elliott, and the passage from the address by the prosecutor, amounted to a contention that the jury should conclude that Nabil was the kind of person who was likely to have instructed Elliott to engage in indiscriminate shooting outside the Love Machine.
It was submitted that, in those circumstances, particularly prejudicial evidence was adduced at the trial, without the judge giving to the jury an appropriate warning against misusing it in the manner impermissibly contended for on behalf of the prosecution. It was submitted that the defence of the applicant and Elliott was conducted on the basis that there was a reasonable possibility that there was a plan between the applicant and Elliott, not to fire at people, but, rather, to fire warning shots, when they attended outside the Love Machine nightclub. It was submitted that the impermissible tendency reasoning, invited by the prosecutor, directly undermined the applicant’s defence, with the consequence that a substantial miscarriage of justice resulted.
In response, counsel for the respondent submitted that the passage in the cross-examination of Elliott, and the section of the prosecutor’s address, relied on by the applicant, did not constitute an invitation by the prosecutor to the jury to engage in tendency reasoning. Rather, in cross-examination and in final address, the prosecutor challenged the credibility of the account, given by Elliott, namely, that he was directed by Nabil to go to the Love Machine to fire warning shots outside it. Counsel submitted that the impugned cross-examination, and the argument in the prosecutor’s address, constituted no more than an appropriate response to that evidence. The applicant and Elliott each relied on evidence relating to Nabil’s disposition in order to bolster the credibility of the defence case, and to explain why they drove to the Love Machine and intentionally discharged a firearm outside it. Having introduced and relied on that evidence, it was open to the prosecution to point to, and rely on, the contrary conclusion that was available, namely, that, in view of the character and disposition of Nabil, as described by Elliott in his evidence, if Nabil did give a direction to Elliott and the applicant to attend outside the Love Machine, the purpose of their attendance there was to exact retribution by shooting people outside it.
Counsel for the respondent further noted that, when specifically asked by the trial judge, counsel for the applicant at the trial indicated that he did not take exception to the portion of the charge, which contained the direction, given by the judge under s 29 of the Jury Directions Act 2015, not to misuse the evidence relating to Nabil and the other criminal conduct of the accused for an impermissible propensity purpose. Specifically, counsel for the applicant did not request the judge to give an expanded anti-tendency direction in respect of the cross-examination of Elliott, and the section in the prosecutor’s address concerning Nabil which is the subject of the proposed ground of appeal.
In those circumstances, counsel submitted, the judge was correct not to give a further direction to the jury contended for by counsel for Elliott at trial. It was submitted that it is clear, from discussions which the judge had with counsel, that the judge did not consider that the submission made by the prosecutor (or the cross-examination of Elliott), involved tendency reasoning, but, rather, was a submission related to the likelihood of whether the instructions, which Elliott claimed he received from Nabil, were in fact given to him by Nabil.

Counsel for the respondent further submitted that if the prosecutor did invite the jury to engage in inadmissible tendency reasoning, no substantial miscarriage of justice has resulted, for three reasons. First, it was submitted, both accused had asked the jury to conclude that Nabil had ordered a vengeance-fuelled drive-by shooting on a busy nightclub, and the applicant and Elliott conducted such a shooting. In that context, it was submitted, the prosecutor’s comments in final address were not a significant departure from the defence case. Secondly, it was submitted, the role of Nabil and the directions he was alleged to have given to Elliott, were considerably less significant in the trial of the applicant than in the trial of Elliott. In the case of the applicant, what mattered was what Elliott conveyed to the applicant in order to recruit him to the plan, and, importantly, the applicant’s understanding of the plan by the time he drove past the Love Machine. Thirdly, in any event, it was submitted that this was a case in which conviction was inevitable. The most significant evidence of the murderous intention of the applicant was constituted by what he and Elliott actually did. The evidence, given by Elliott — that he and the applicant intended to fire warning shots, but that he somehow shot four people — was so preposterous as to be incapable of acceptance. It was submitted that, in view of the actions of the applicant and Elliott at the point of the shooting, it was inevitable that the jury would conclude that each of them had an intention to kill.

Conviction appeal ground 1 — analysis and conclusion

In considering ground 1, it is important to understand how, and for what purpose, evidence relating to the character and disposition of Nabil was adduced in the trial.
While some of the evidence adduced by the prosecution relating to the police investigation, including the listening device material, reflected on the criminal activities of Nabil, it is quite clear that the direct evidence relating to Nabil and his criminal associations was introduced and relied on by counsel for Elliott as a significant aspect of his defence of the charges. Specifically, the evidence was adduced on behalf of Elliott as the necessary foundation to explain how, why and for what purpose he came to attend outside the Love Machine and to conduct the shooting there.
At the commencement of the trial, senior counsel for Elliott made it clear to the jury that Nabil’s character was a relevant consideration in respect of the issues in the trial. In opening the case on behalf of Elliott, counsel told the jury that as the evidence unfolded, they would come to appreciate what it was like for Elliott to have a father like Nabil. Counsel observed:
And the saying ‘family, a blessing and a curse’ will ring true. So we’ll have a lot more to say about Nabil Maghnie and his relationship with his son, Jacob, at the end of the trial.
As we have outlined in summarising the evidence, Elliott gave quite detailed evidence relating to his family background, and, in particular, relating to his relationship with Nabil. Elliott specifically gave evidence as to the involvement of Nabil in criminal activity, Nabil’s volatile personality, and Nabil’s propensity to be violent to him on any occasion that Elliott displeased him. Elliott said that he had observed Nabil regularly in possession of firearms. Elliott said that on the evening before the shootings, Nabil had been on drugs, he had not slept well, and his mood had become quite unpredictable.
That evidence was the prelude to the evidence, given by Elliott, as to the instruction that he received from Nabil in the early hours of 14 April 2019 and concerning his response to it.
The evidence so given by Elliott served two important purposes for the purpose of his defence, and, as such, the defence of the applicant. First, the evidence was a necessary context to explain, and make credible, the content of the instruction, which Nabil gave to Elliott. Secondly, the evidence was relevant to explain why Elliott felt constrained to follow the instruction given to him by Nabil, notwithstanding his stated reluctance to do so.
In final address, senior counsel for Elliott focused more substantially on the second purpose for which the evidence had been adduced, namely, to explain why Elliott felt constrained to adhere to the instructions given to him by Nabil. However, it is quite clear from the context of the case, and the submissions made by senior counsel in final address, that that evidence also necessarily reflected on the credibility of the evidence, given by Elliott, that his father gave him an instruction to commit what was a particularly serious criminal act. In the absence of such evidence, the jury might well have found it quite incredible that a father would, in any circumstances, give an instruction to his son to become implicated in such serious criminal offending. The evidence relating to Nabil’s character and antecedents necessarily addressed that issue, and made it more probable that Nabil, the father of Elliott, did give his son such an instruction.
Counsel commenced her address by reminding the jury what she had said at the beginning of the case, namely, that ‘family is both a blessing and a curse’. She reminded the jury of some of the listening device intercepts that had been tendered in evidence, in which Nabil had spoken in an ‘enraged, irrational, sometimes hair-raisingly scary voice’. Counsel then invited the jury to consider the reality of the dynamic of the relationship between Nabil and Elliott. She acknowledged that the jury would find it difficult to relate to the account given by Elliott, and that they would consider that ‘No parent of mine has ever asked me to do anything like that’. Counsel referred to the evidence of Elliott, that his father asked him to go to the Love Machine and fire warning shots. She acknowledged that it was at that point of the evidence that the jury may well have ‘balked’, because they could not relate to a father giving a son such a direction. Counsel noted:
He’s telling us that his father asked him to engage in criminal activity. And get some stolen cars, grab a gun and fire some warning shots outside a nightclub to scare people.
Counsel noted that the jury members, if given such an instruction, might well have refused to comply with it. However, she observed that we do not choose our parents, and Nabil was not the sort of person to say no to.
After reviewing the timeline of telephone calls contained in the records, counsel referred to three calls, between Nabil and Elliott, in which Nabil did all the talking. At that point, counsel made the submission, to which we have earlier referred.[2] Significantly, counsel submitted that it was not unrealistic to suggest that Elliott received specific instructions about what Nabile wanted him to do, because that was ‘totally consistent with the person that you can glean from the telephone intercept material’. As we have also noted, senior counsel, referring again to the ‘blessing and a curse’, noted that Elliott’s family (in particular, Nabil) was a ‘curse’, because ‘only a father like Nabil Maghnie would ask his son to do what was asked of him’.
[2]Above, [83].
It is quite clear, from the foregoing discussion, that a central plank of the defence, relied on by Elliott, and consequently by the applicant, was constituted by the instruction that Nabil was said to have given to Elliott, before Elliott and the applicant proceeded to the Love Machine in order to execute that instruction. In that context, the evidence as to Nabil’s character and disposition was of particular relevance to make credible the evidence of Elliott, first, that Nabil gave him an instruction to proceed to the Love Machine to fire warning shots, and, secondly, that Elliott felt constrained to obey that instruction. As discussed, senior counsel for Elliott relied on the evidence as to Nabil’s character and disposition, principally for the second purpose. However, it is also quite evident, from the foregoing analysis of her address, that she also specifically used the evidence to give credibility to Elliott’s evidence that his father instructed him to commit such a grave criminal act.
It is arguable, although in the context of this case, a moot point, whether the reliance by the defence on the evidence as to the character and disposition of Nabile, for the first such purpose, constituted a form of tendency reasoning.
As the authorities on s 97 of the Evidence Act 2008 have explained, tendency evidence is evidence that provides a foundation for an inference that, because a person had a particular tendency, it is more likely that that person acted in the manner asserted by the party relying on the evidence.[3] In the present case, it may be maintained that counsel for Elliott, by relying on the evidence of Nabil’s character to give credibility to the content of the instruction that he gave to Elliott, did engage in tendency reasoning, albeit without complying with the requirements of s 97 of the Evidence Act 2008. However, and relevantly, the cross-examination undertaken by the prosecutor, and the section of the prosecutor’s address, that are the subject of ground 1, necessarily engaged with, and derived from, the evidence that was so adduced on behalf of the defence for that purpose.
[3]Gardiner v The Queen (2006) 162 A Crim R 233, 260 [124] (Simpson J); [2006] NSWCCA 190; Elomar v The Queen (2014) 316 ALR 206, 278 [359]–[360] (Bathurst CJ, Hoeben CJ at CL and Simpson J); [2014] NSWCCA 303; Hughes v The Queen (2017) 263 CLR 338, 365 [70] (Gageler J); [2017] HCA 20.
As discussed, it was the defence who chose to put before the jury significant evidence as to the character and disposition of Nabil. As also explained, while that evidence was primarily directed to explain why Elliott obeyed his father’s instruction, it was also relevant, and was relied on, to give credibility to the content of the instruction, which Elliott said that his father had given to him. It made it more credible — more likely — that Nabil gave to Elliott the instruction described by Elliott in his evidence. In those circumstances, it was legitimate for the prosecutor to address that evidence, and, in effect, to advance the proposition that, in view of the character and disposition of Nabil that was the subject of evidence, and which was relied on by the defence, it was plausible that the instruction given by him to Elliott was not an instruction to fire warning shots, but an instruction to shoot at people gathered outside the Love Machine nightclub.
In those circumstances, contrary to ground 1, the prosecution did not engage in impermissible reasoning based on Nabil’s character and disposition, and the judge did not err in declining to give to the jury the further direction sought by counsel for Elliott. For those reasons, ground 1 of the application for leave to appeal against conviction must fail.
Further, we would add that if the judge did impermissibly invite the jury to engage in inadmissible tendency reasoning, we are satisfied that that did not result in a substantial miscarriage of justice. The conclusion is inescapable that, in view of the evidence at the trial, the conviction of the applicant on the charges under consideration was, in any event, inevitable.[4]
[4]Baini v The Queen (2012) 246 CLR 469, 479–82 [26]–[33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59 (‘Baini’); Awad v The Queen (2022) 275 CLR 421, 431–2 [26]–[28], 435 [39] (Kiefel CJ, Gleeson J), 444–5 [76]–[78] (Gordon and Edelman JJ); [2022] HCA 36.
In considering that question, it is not necessary to rehearse the whole of the evidence, which we have summarised earlier in these reasons. However, in essence, based on the evidence in the trial, the conclusion is inescapable that it was not open to the jury to entertain a reasonable doubt as to the guilt of the applicant on the charges against him.[5]
[5]Baini (2012) 246 CLR 469, 481 [32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
In particular, three points are clear.
First, the conclusion was inescapable that, at all material times, the applicant was in common accord with Elliott as to precisely what was to occur when they reached the Love Machine.
The actions of the applicant and Elliott, in the period of one and a half hours preceding the incident, bespoke a common understanding between them as to what was to occur, and how it was to be carried out. Their actions in meeting together at Wollert South, driving towards the nightclub in the Porsche with the backpack containing the gun, balaclava, and ammunition, pausing on the way to collect the Suzuki vehicle, subsequently leaving the Suzuki vehicle in South Yarra, and then proceeding to the nightclub, with the applicant assuming the role of driver, and Elliott as passenger, was an overwhelming basis for a conclusion that the applicant was a party to a plan with Elliott as to what was to occur when they arrived at the nightclub.
Secondly, the actions of both the applicant and Elliott, when they reached the nightclub, necessarily and indisputably bespoke the precise intent with which Elliott discharged his firearm with such fatal consequences.
The actions of the applicant, in driving past the nightclub on four occasions, giving himself and Elliott the opportunity to reconnoitre the premises, of then pausing a distance south of the Love Machine before proceeding towards it, and then slowing down as they approached the crowd at the Love Machine, demonstrated the applicant’s continuing accord with Elliott, and evidenced that the execution of that accord was planned and deliberate.
The actions that then followed, with Elliott winding down his window, the vehicle slowing down, Elliott taking hold of the pistol in both hands and deliberately firing four shots in close succession at people who were within a few metres, striking each of the victims in the upper body, were indisputably the actions of a person whose sole intention was to kill, or, at the very least, cause really serious injury to, members of the group of persons at whom the weapon was fired. Those actions inexorably lead to the conclusion that the intention was not merely to fire warning shots. The only reasonable conclusion, which could have been derived from the actions of the applicant and Elliott at that point, was that the shots were discharged with murderous intent.
The third aspect of the evidence, which is relevant for present purposes, is that, immediately after the shooting, the applicant accelerated the Porsche vehicle and made his escape from the scene in company with Elliott. In the days that followed, the applicant was not heard to utter one single word of recrimination against Elliott or Nabil, or any expression of regret, which might have evinced some dissent from the actions that were engaged in by Elliott in deliberately discharging the firearm at the group of people gathered at close range outside the Love Machine.
In those circumstances, it must be concluded that, based on the evidence in the trial, the conviction of the applicant on the charges against him was inevitable, and it was not open to the jury to entertain a reasonable doubt about his guilt on any of those charges.
For those reasons, the proposed ground of appeal against conviction must fail.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

As mentioned, the applicant also seeks leave to appeal against sentence on three grounds.

The plea

The applicant was born on 15 June 1997. At the time of the offence, he was 21 years of age, and, at the time of sentence, he was 25 years of age. He had one previous set of convictions. On 5 February 2019, he was convicted by the Heidelberg Magistrates’ Court, and placed on a Community Corrections Order for 12 months, on charges of trafficking cocaine, negligently dealing with the proceeds of crime, and possession of a controlled weapon without excuse. On the plea in the present case, it was said that the weapon was a pen knife that was in the glovebox of the applicant’s motor vehicle.
The applicant has an older sister and a younger brother. He was born to parents of Lebanese heritage. His parents’ marriage was quite acrimonious, and they separated when he was 12 years of age. After the separation, the applicant and his sister lived with his father. The applicant’s father worked long hours and provided little support to the applicant. Subsequently, the applicant resided with his paternal grandmother in Reservoir, before returning to live with his mother when he was 16 years of age.
The applicant attended primary school at Lalor, where he suffered some bullying because he was small in size. He subsequently attended Lalor Secondary School, where he evinced behavioural difficulties. He commenced to smoke cannabis and missed classes. He left school at the commencement of Year 10.
The applicant then commenced a pre-apprenticeship as a mechanic in Coburg. He subsequently worked as a mechanic for a period of time, before commencing and completing a pre-apprenticeship in bricklaying. He was then employed by a bricklaying company for about seven months, before returning to work as a mechanic. In that capacity, he completed two years of an apprenticeship, but ceased employment after a dispute with his employer. He was then unemployed for some six months, before obtaining employment as a bricklayer with ‘Brick-By-Brick’. In that time, he completed two years of a bricklaying apprenticeship.
On the plea, counsel for the applicant tendered nine character references, prepared by family members, friends, and an employer. The applicant’s two parents and a cousin gave character evidence in the course of the plea.
The applicant had a longstanding history of drug abuse, which commenced with his use of cannabis when he was 16 years of age. At the age of 19 years, he commenced using harder drugs, principally cocaine and MDMA. His use of cocaine increased rapidly, and culminated in him using that drug on a daily basis. The applicant participated in drug counselling following his conviction in 2019, but subsequently relapsed.
Dr Mathew Barth performed a psychological assessment of the applicant on 23 June and 7 July 2022. Dr Barth concluded that on his evaluation, the applicant had experienced symptoms of a moderate degree of depression and anxiety, arising from his circumstances. His thought processes were normal, and there was no suicidal ideation. Dr Barth considered that the applicant was an immature man, who tended to avoid and repress negative emotions. Psychological testing indicated that he is an insecure and self-critical young person, who has a tendency to act out his low self-esteem with reckless behaviour. His substance abuse issues have exacerbated his personality and behavioural problems. At the time of assessment, Dr Barth considered that the applicant met the diagnostic criteria for a stimulant use disorder, which was in remission while he was in custody. A detailed violence risk assessment, undertaken by Dr Barth, signified that the applicant was likely to pose a moderate risk of violent re-offending.
On the plea, it was also noted that before the beginning of the trial, the applicant had been diagnosed to have a colloid cyst in the brain. A CT scan performed in January 2022 confirmed the cyst. A neurosurgery registrar, who examined the applicant on 21 June 2022, noted that there were no present signs of intracranial pressure or hydrocephalus. The plan was for the applicant to have a further MRI at that time.
In the course of the plea, counsel for the applicant made a number of submissions concerning how the judge should assess the applicant’s culpability for the offending. It was submitted that the applicant was not the ‘guiding light’ in the offending, and that his involvement in the offence was entirely out of character for him. Counsel sought to submit that the judge ought to conclude the intention of the applicant and Elliott, to kill bystanders outside the nightclub, was only formed some 10 to 15 minutes before the incident. He also submitted that the judge should accept that the applicant was a reluctant participant in the offending, who was persuaded by his friend, Elliott, who was a ‘commanding character, an A-type personality’. It was also submitted that the applicant had demonstrated a degree of remorse for the offending, which was constituted by the suggestion, made by counsel in his final address, that the jury should convict him of manslaughter. Finally, counsel relied on the applicant’s relative youth, his lack of previous convictions, the evidence of his otherwise good character, and the care that the applicant had given to his father, who had had major cardiac problems.

We do not accept the submission made on behalf of the applicant that the fact that the applicant was motivated by a desire to support Elliott in his quest for revenge, rather than being driven by a personal motive of vengeance, in some way reduced the applicant’s moral culpability and the objective gravity of the offending. Nor did it, in some way, render the applicant’s relative youth at the time more relevant as a consideration in the sentencing synthesis.
Regardless of whether the applicant’s motive was revenge, or to assist his friend to exact retribution, his decision to engage in the plan, and carry it out, could not be characterised as a spontaneous and thoughtless reaction, on the spur of the moment, driven by his youth. As we have discussed, after the applicant readily joined in the plan to attack the Love Machine, he participated in a number of deliberate and considered steps to facilitate the execution of that plan. Even if his original agreement to participate in the plan could be attributed in some way to his youth, nevertheless, he had a substantial period of time to consider it, and to withdraw from it. The steps that were taken to prepare for, and led up to, the fatal killing, all bespoke planning and consideration by both Elliott and the applicant.
In those circumstances, this case is quite distinct from the circumstances of Pan,[42] relied on by counsel for the applicant. In contrast to the present case, in that case, the judge specifically declined to characterise the killing as revenge killing, and, as such, did not find that the killing in that case was premeditated, or a considered response to the conduct of the victim.[43]
[42][2022] VSCA 98.
[43]Ibid [46] (Priest, Niall and Emerton JJA).
For the foregoing reasons, the judge did not err in evaluating the objective gravity (or, indeed, the moral culpability) of the applicant’s offending on the basis that he had attached himself to a criminal enterprise that was motivated by vengeance or retribution. It follows that ground 1 of the application for leave to appeal against sentence must fail.

Ground 2 of the application for leave to appeal against sentence — submissions

In support of ground 2, counsel for the applicant submitted that the judge erred by comparing the objective features of the charged offending with the notional middle range of seriousness of offences of murder and, having done so, concluded that the objective features of the charged offending were worse, and in the upper range of seriousness.[44] Counsel submitted that, in doing so, the judge engaged in reasoning that was proscribed by this Court in Brown.[45] In particular, it was submitted, the judge, in effect, engaged in an impermissible two-stage sentencing process, and, by doing so, his Honour sidelined relevant subjective features of the offending from the sentencing synthesis.[46] It was submitted that, in effect, the judge over-emphasised the objective features of the offending, and, by doing so, failed to give adequate consideration to the subjective circumstances of the applicant. In particular, it was submitted that the judge impermissibly relegated the community’s interest in the rehabilitation of the applicant to a subsidiary consideration.
[44]Reasons, [188]–[189].
[45](2019) 59 VR 462; [2019] VSCA 286.
[46]Markarian v The Queen (2005) 228 CLR 357, 377–8 [50]–[74] (McHugh J); [2005] HCA 25. This Court has described ‘two-stage’ sentencing as a process in which a starting sentence or range of sentences is first determined, such as by reference only to the objective gravity of the offending, and then adjusted up or down by reference to particular features of the case, including matters personal to the offender: Brown (2019) 59 VR 462, 468 [17] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); [2019] VSCA 286.
Counsel further submitted that in determining whether the case fell within the worst category of offences, justifying a sentence of life imprisonment, the judge erroneously failed to take into account the personal circumstances and mitigating factors relating to the applicant, as required by the decision of the High Court in R v Kilic.[47]
[47](2016) 259 CLR 256, 265-6 [18] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48 (‘Kilic’).
In response, counsel for the respondent submitted that the judge correctly applied the standard sentence regime to the murder charges, in accordance with the relevant authorities, and, in doing so, did not restrict his consideration only to objective factors. In particular, the judge referred to the standard sentence as no more than a legislative guidepost. The judge acknowledged that he was not permitted to engage in two-stage sentencing, stated that he had arrived at the sentences by a process of instinctive synthesis, and explicitly stated that he had applied the principles, outlined by this Court in Brown.[48] It was submitted that while the judge did engage in an element of comparison with the prescribed standard sentence, the comments made by the judge in that respect did not undermine his Honour’s explanation of his approach, and did not reveal error in that approach. In particular, it again emphasised that the judge did not assess the applicant’s offending by reference only to the objective factors. In his sentencing remarks, the judge covered both the objective and subjective factors, and, in determining sentence, stated that he had taken into account the mitigating factors, which applied to the applicant’s offending.
[48]Reasons, [187]–[192].
Counsel further submitted that the part of the sentencing reasons, relied on by the applicant, concerned submissions that had been advanced on behalf of the applicant about the need to avoid a crushing sentence. It was submitted that, in that part of his reasons, the judge was dealing with the task of balancing the need to avoid a crushing sentence, and to foster the prospects of rehabilitation, against the need to impose a significant period of imprisonment. In that balancing process, it was submitted, the judge did not relegate the applicant’s future rehabilitation, or disregard the applicant’s subjective circumstances. Rather, the judge expressly noted that it was important to bear in mind the applicant’s prospects and hopes of future rehabilitation, and the need to avoid passing a sentence which would be crushing to those hopes.
Finally, counsel submitted that in determining whether to impose a life sentence on the applicant, the judge did correctly take into account both the gravity of the offending and the circumstances of the applicant, as required by the High Court in Kilic.[49] In determining that sentences of life imprisonment, in respect of each of the applicant and Elliott, were appropriate and necessary, the judge had express regard to all of the relevant matters.[50]
[49](2016) 259 CLR 256, 265–6 [18] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48.
[50]Reasons, [230].

Ground 2 analysis and conclusion

Section 3(2) of the Crimes Act 1958 provides for a prescribed standard sentence for the crime of murder. Section 5B(2)(a) of the Sentencing Act 1991 provides that in sentencing an offender for a standard sentence offence, the Court must take the prescribed standard sentence into account ‘as one of the factors relevant to sentencing’. Section 5A(1)(b) provides that the period specified as the standard sentence for the offence is the sentence for an offence that ‘taking into account only objective factors affecting the relative seriousness of that offence’ is in the middle of the range of seriousness. Section 5A(3) provides that the objective factors, affecting the relative seriousness of the offence, are to be determined without reference to matters personal to the offender, and wholly by reference to the nature of the offending.
In Brown,[51] this Court gave consideration to the effect of a prescribed standard sentence on the sentencing process. Relevantly, the Court determined that the standard sentencing scheme does not require, or, indeed, permit, the sentencing judge to assess the seriousness of the subject offence, taking into account only objective factors. The Court stated:
In our opinion, the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and is not constrained by the legislative definition of ‘objective factors’.[52]
[51](2019) 59 VR 462; [2019] VSCA 286.
[52]Ibid 465 [6]–[7] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
In particular, the Court considered that to assess the seriousness of an offence by comparison with the hypothesises offence of mid-range seriousness would involve undertaking two-stage sentencing, which is contrary to the well-established process of determining a sentence by an instinctive synthesis of all relevant factors.[53]
[53]Ibid 471 [27] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
Ground 2 focuses, and is based, on the passage in the judge’s sentencing reasons, in which his Honour discussed the application of the standard sentence scheme to the offences, which we have set out earlier in these reasons.[54] In particular, ground 2 is based on the judge’s remark that ‘taking into account only the objective factors affecting the relative seriousness of your crimes of murder, those crimes would fall well above the middle range of seriousness’.[55]
[54]Above, [149].
[55]Reasons, [188].
In considering the effect of that passage on the sentences imposed by the judge, it is necessary to view the judge’s reasons for sentence as a whole, so as to provide an appropriate context to the impugned passage. As this Court has explained on previous occasions, sentencing reasons, given by a judge, are not to be construed minutely and selectively, with a view to locating specific error, and they are not to be construed strictly as if they are in a statute, will or deed.[56]
[56]R v Groom [1999] 2 VR 159, 160 [3] (Tadgell JA); [1998] VSCA 146; Wong v The Queen [2013] VSCA 52, [19] (Priest JA, Tate JA agreeing at [1], Vickery AJA agreeing at [36]); Ludwig v The Queen [2015] VSCA 35, [36]–[37] (Weinberg and Santamaria JJA); Zogheib v The Queen (2015) 257 A Crim R 454, 467–8 [55] (Maxwell P agreeing at 457 [1], Santamaria JA agreeing at 459 [12]); [2015] VSCA 334; Lee v The Queen [2018] VSCA 63, [60] (Kyrou JA).
It is quite evident, from a review of the judge’s reasons for sentence, that his Honour made a detailed and careful evaluation of the nature of the offending, both in terms of its gravity and the moral culpability of the applicant and Elliott. In doing so, his Honour noted that counsel for both Elliott and the applicant had acknowledged that their offending was ‘extremely grave’.[57] His Honour went on to conclude that the crimes committed by them could be reasonably described as ‘dreadful’,[58] and, taking into account all the surrounding circumstances, the murders could be considered to come within the most serious category of the crime.[59]
[57]Reasons, [165].
[58]Ibid [167].
[59]Ibid [171].
The judge then gave consideration to the degree of culpability of each of Elliott and the applicant for the offending. In doing so, he concluded that, notwithstanding the relatively young age of each of them, their moral culpability and their degree of responsibility for the offending was ‘very high’.[60]
[60]Ibid [173]–[175].
Relevantly, the judge’s consideration of those matters preceded his comments concerning the standard sentence scheme. Having discussed that aspect of s 5(2) of the Sentencing Act 1991, the judge noted that the sentence that he would pass upon each of Elliott and the applicant was higher than the standard sentence for the offence of murder (25 years). As we have noted, his Honour specifically stated that, in arriving at the sentences imposed on each of them, he took into account all of the matters required to be considered under s 5(2) of the Sentencing Act 1991, including the standard sentence for murder. His Honour stated:
I have taken into account any mitigating factors which apply to your crimes. By the process of instinctive synthesis, I have arrived at the sentences I will shortly announce.[61]
[61]Ibid [192].
The judge then proceeded to consider the prospects of rehabilitation of each of the applicant and Elliott. His Honour stated that, in sentencing each of them, he would take into account the need, wherever possible, to foster their prospects of rehabilitation.[62] However, in view of the gravity of the offending, his Honour considered that that consideration must take a ‘back seat’ to the more important sentencing objectives, that include denunciation, general deterrence, specific deterrence and protection of the community.[63]
[62]Ibid [208].
[63]Ibid [215].
Taken in isolation, the passage relied on by the applicant, in support of ground 2, does conflict with the principles stated by this Court in Brown, namely, that the sentencing judge ought not to embark on a comparison of the instant offending with the putative offence that, taking into account only the objective factors, is in the middle range of seriousness of such offences. However, it is quite clear from the foregoing review of the judge’s sentencing reasons, that, in context, his Honour’s comparison of the objective factors in the instant case, with a putative offence in the middle range of objective gravity, did not infect his sentencing reasons so as to disclose error.
First, it is indisputable that the offences, committed by Elliott and the applicant, were well above the middle range of seriousness, regardless of whether one takes into account the subjective factors of each of the offenders. Secondly, and more importantly, it is clear from the passages of the sentencing reasons that preceded the impugned passage in the sentencing reasons, and the passages which followed it, that his Honour’s determination of the sentences imposed on the applicant was not affected by the passage in the reasons relied on in support of ground 2. When considered as a whole, it is clear that the judge had a proper understanding of the role of the prescribed standard sentence as ‘one of the matters to be taken into account’,[64] and that, in determining the applicant’s sentences, the judge did, by a process of instinctive synthesis, properly take into account all of the matters specified in s 5(2) of the Sentencing Act 1991.
[64]Ibid [188].
In reaching that conclusion, we are fortified by the decision of this Court in Wilio v The King.[65] In that case, the sentencing judge, in the course of his sentencing reasons, referred to the standard sentence for murder in similar terms to those in which the judge did in the impugned passage in the present case.[66] The Court concluded that when the judge’s sentencing reasons were read in full, it was clear that the judge had a correct understanding of the function of the prescribed standard sentence, and, accordingly, the judge’s discussion, containing the impugned passage, did not involve any error in the sentencing process in that case.[67]
[65][2023] VSCA 88.
[66]Ibid [94] (Priest, Beach and Kaye JJA).
[67]Ibid [98] (Priest, Beach and Kaye JJA).
For the same reasons, we do not consider that the judge failed to take into account the applicant’s personal circumstances in determining whether the applicant’s offences fell within the worst category of such offences, as required by the decision of the High Court in Kilic.[68] In that respect, as we will discuss when considering ground 3, in reality, the applicant had little by way of personal circumstances available to him as mitigating factors, apart from his youth. It is quite clear from the totality of the judge’s sentencing reasons, that in determining that the offending fell into the most serious category of the crime of murder, the judge appropriately took into account the applicant’s personal factors and in particular his youth.
[68](2016) 259 CLR 256, 265–6 [18] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48.
It follows that ground 2 of the application for leave to appeal against sentence does not succeed.

Ground 3 of application for leave to appeal against sentence — submissions

In support of ground 3, counsel for the applicant submitted that it was not open to the judge to impose life sentences on charges 1 and 2. It was submitted that the judge over-estimated the objective gravity of the offending by reason of the errors relied on in support of grounds 1 and 2, and, in particular, that it was not open to the judge to characterise the applicant’s offending as motivated by revenge.
Counsel further submitted that, even if the applicant had knowingly lent himself to the retributive aims of others, his offending did not call for a life sentence. Counsel relied on a number of features of the offending. In particular, the offending occurred in a single course of conduct. The planning was limited. The applicant’s role was confined to being the driver of the vehicles. All four shots were fired within one second. The consequence of each shot was the subject of a separate charge. While the applicant was equally liable for those offences, his culpability was meaningfully different to that of Elliott. In that respect, it was noted that the applicant did not direct the offending, and his moral culpability could not be assessed as one who failed to desist from shooting after having fired and observed the outcome of the first, second or third shots.
Counsel placed particular reliance on the applicant’s youth. First, it was submitted that the applicant’s youth and immaturity were relevant because they explained, at least in part, his participation in the offending. Secondly, it was submitted that youth and immaturity remained relevant and important sentencing considerations, even if they were not causally connected with the offending. Thirdly, counsel contended, the community had an interest in the applicant’s rehabilitation through the avoidance of a crushing sentence. The applicant is not without prospects of rehabilitation, and this is not a case in which the protection of the community required the imposition of a life sentence. The applicant did not have an extensive criminal history, and his conduct on remand had reflected favourably on his prospects of rehabilitation.
It was submitted that the judge, in effect, disregarded the applicant’s prospects of rehabilitation, other than to find that they were more promising than those of Elliott.
Finally, it was submitted that, contrary to the judge’s conclusion, previous cases in which a life sentence has been imposed on a youthful person are confined to cases in which the person had a violent propensity, or (in one case) the case involved the killing of a police officer in execution of his duty.
In response, counsel for the respondent submitted that the judge appropriately described the applicant’s offending as ‘dreadful’. The applicant was found guilty of the premeditated murder of two strangers. The offences were carried out in a brazen and dangerous manner in a public place, with the objective of retribution. The applicant’s actions evidenced an indifference to human life, and a disregard for community safety.
Counsel further submitted that not only was the offending grave, but the applicant’s moral culpability was very high. The applicant was unable to rely on considerations based on the principles in R v Verdins[69] or Bugmy v The Queen,[70] and he could not avail himself of the sentencing discount that accompanies a plea of guilty. Further, the applicant had not evidenced any genuine remorse.
[69](2007) 16 VR 269; [2007] VSCA 102.
[70](2013) 249 CLR 571; [2013] HCA 37.

Counsel further submitted that the judge was correct to find that the applicant’s relative youth was reduced as a mitigating factor, in view of the gravity of the offending. It was contended that the judge was correct to find that immaturity did not play a significant role in the offending. Counsel further noted that the applicant’s prospects of rehabilitation were described by Dr Barth as ‘not futile’. While the judge considered that the applicant’s youth and prospects of rehabilitation should be given less weight in the sentencing process, his Honour did not ignore them as relevant sentencing considerations.
Finally, counsel noted that, in determining the sentences imposed on the applicant and Elliott, the judge had regard to current sentencing practices, specifically by reference to a table of cases, provided by the prosecution. In doing so, the judge correctly noted that the applicant’s youth was not a feature that disqualified him from the imposition of a sentence of life imprisonment.
Accordingly, it was submitted that the sentences, imposed on the applicant, were well within the sentencing range open to the judge, and were not manifestly excessive.

Ground 3 — analysis and conclusion

In order to succeed on ground 3, that the sentences imposed on the applicant were manifestly excessive, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the judge. In other words, it must be demonstrated that the sentences, that are the subject of the ground of appeal, were so excessive as to bespeak error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in his Honour’s reasons for sentence.[71]
[71]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
In the present case, as the judge correctly concluded, the offending by the applicant could only be described as extremely serious, and falling within the category of the worst instances of the crime of murder. There were a number of features of the offending, which support that conclusion.
The offending was not spontaneous, or the result of a momentary loss of self-control. On the contrary, it was well-planned, carefully prepared and ruthlessly executed.
There was no justification at all for the applicant to be involved in the planned offence, or in the offence itself. The offending, involving the deliberate shooting of defenceless and unsuspecting bystanders, was so disproportionate to the perceived slight to Elliott and his family, arising from the eviction of Ali from the Love Machine, as to defy comprehension.
It is clear that the planned attack, which was carried out, was to indiscriminately shoot and kill any innocent persons, who just happened to be outside the Love Machine nightclub at the time that the plan was to be put into effect. It would have taken one moment’s reflection for the applicant to have been fully conscious of the enormity of the offending that he was intending to commit, both in terms of its barbarity and in the abject cowardice involved in the manner in which it was to be executed.
The applicant, having made himself a party to the plan, had abundant time to come to his senses, and to withdraw from it, before it was put into execution. There were a number of intermediate steps taken by Elliott and the applicant, which included setting out in the Porsche in Wollert South, collecting the Suzuki, driving in convoy towards the Love Machine, parking the Suzuki, and the applicant then taking his position as the driver of the Porsche. At each of those stages, the applicant had ample opportunity to resile from his murderous intentions. It would have taken less than one moment’s reflection for the applicant, had he chosen to do so, to appreciate the enormity of the offences that he was setting out to commit.
The shooting was preceded by four occasions on which the applicant drove the Porsche past the Love Machine to reconnoitre the site of the planned shooting and to determine an appropriate time at which to carry out the plan to murder bystanders, standing outside it. During each of those four instances, the applicant would have seen innocent and defenceless persons standing around or in the vicinity of the Love Machine, which, ordinarily, should have brought home to him the sheer enormity and gross inhumanity of the crimes that he and Elliott were planning to commit.
On the fifth and last lap, the applicant paused a distance from the target, and then, when the timing was opportune, he steadily approached the group of innocent victims, steered the vehicle in a position in which the passenger’s side was close to them, and decelerated sufficiently to enable Elliott to discharge the weapon at them at virtually point blank range.
The victims of the offending were entirely innocent and totally defenceless. They had no warning at all as to what was to befall them, and, as such, they had no opportunity to seek cover or otherwise protect themselves. The execution of them by the applicant and Elliott was an act of extreme cowardice.
Each of those features combined to render the offending by the applicant to be extremely serious, and to place it in the category of the most serious instances of the crime of murder. As the judge correctly stated, the offences ‘showed a complete disregard for the law, a distinct lack of normal human decency and humanity, and a callous disregard for the sanctity of human life’.[72] The offending struck at the heart of the most fundamental values of our community.
[72]Reasons, [212].
In the context of such serious offending, the applicant had little to rely on by way of mitigation in terms of his personal circumstances. The report of Dr Barth makes it clear that he was not suffering from any form of mental impairment, which either contributed to the offending, or which might have rendered a term of imprisonment on him more onerous, so as to attract the principles stated by this Court in R v Verdins.[73] Nor did the applicant experience the kind of upbringing or background circumstances, which would have attracted the principles, stated by the High Court in Bugmyv The Queen.[74]
[73](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
[74](2013) 249 CLR 571; [2013] HCA 37.
The principal factor relied on in mitigation on the plea, and in this application, was the applicant’s youth at the time of the offending and at the time of sentence.
As his Honour recognised, ordinarily the youth of an offender is an important consideration in the sentencing process, because young offenders are more prone to make ill-considered or rash decisions, and further, because the courts recognise the value to the community of rehabilitating youthful offenders.[75] However, it is recognised that as the level of the seriousness of criminality increases, there will be a corresponding reduction in the mitigatory effects of the offender’s youth.[76]
[75]R v Mills [1998] 4 VR 235, 241 (Batt JA, Phillips CJ agreeing at 236, Charles JA agreeing at 236); Azzopardi (2011) 35 VR 43, 53–4 [34]–[35] (Redlich JA, Coghlan AJA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]); [2011] VSCA 372.
[76]Azzopardi (2011) 35 VR 43, 57 [44] (Redlich JA, Coghlan AJA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]); [2011] VSCA 372; DPP (Cth) v MHK (a pseudonym) (2017) 52 VR 272, 289 [56]–[57] (Warren CJ, Weinberg and Kaye JJA); [2017] VSCA 157.
In Azzopardi, Redlich JA stated that principle in the following terms:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[77]
[77]Azzopardi (2011) 35 VR 43, 57 [44] (Redlich JA, Coghlan AJA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]); [2011] VSCA 372. See also DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA, Nettle JA agreeing at 133 [26]), 133 [25] (Winneke P); [2004] VSCA 154.
In the present case, as discussed, the offending by the applicant could only be described as at the extreme end of gravity. In such a case, the applicant’s youth, while still relevant, was necessarily accorded significantly less weight than would otherwise be the case.
Counsel for the applicant, by way of comparable sentences, referred the Court to a number of sentencing decisions in which life sentences have been imposed on young persons, including R v Dumas,[78] R v Beckett,[79] R v Crosbie,[80] Acar v The Queen,[81] Hicks v The Queen,[82] and Todd v The Queen.[83] Counsel contended that, in each of those cases, the young offender had an established violent propensity and, as such, had limited prospects of rehabilitation. By contrast, in the present case, counsel submitted that the judge concluded that the applicant’s prospects of rehabilitation were more promising than those of Elliott.[84]
[78][1988] VR 65 (‘Dumas’).
[79][1998] VSC 219 (‘Beckett’).
[80][2003] VSC 69 (‘Crosbie’).
[81][2012] VSCA 8 (‘Acar’).
[82][2015] VSCA 14 (‘Hicks’).
[83][2020] VSCA 46 (‘Todd’).
[84]Reasons, [205].
On analysis, that submission does not advance the case of the applicant. First, as the High Court has emphasised in DPP vDalgliesh (a pseudonym),[85] while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration in the determination of the sentence in each case, nevertheless, that factor is only one of a number of factors, which must be taken into account in the exercise of the sentencing discretion in a particular case.[86] Further, as this Court has noted on a number of occasions, some caution must be exercised in identifying the appropriate sentencing range by reference to, or by contrasting it with, previous sentencing decisions. In the context of sentencing, no two cases are identical. The exercise of the sentencing discretion, in each case, is necessarily the result of a balancing of a number of different, and frequently conflicting, factors which can vary considerably between each individual case.[87]
[85](2017) 262 CLR 428; [2017] HCA 41.
[86]Ibid 434 [5]–[9] (Kiefel, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
[87]Hili v The Queen (2010) 242 CLR 520, 535–7 [48]–[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 45; Hudson v The Queen (2010) 30 VR 610, 617–18 [28]–[33] (Ashley, Redlich and Harper JJA); [2010] VSCA 332; Hasan v The Queen (2010) 31 VR 28, 38 [44] (Maxwell P, Redlich and Harper JJA); [2010] VSCA 352.
Secondly, and in any event, it is apparent from an examination of each of the cases referred to by counsel for the applicant, that the principal consideration of the court, in either imposing, or upholding, a sentence of life imprisonment, was the extreme gravity of the offending in each case, in circumstances in which it was accordingly considered that the offender’s youth and rehabilitation must necessarily play a significantly less and subsidiary role in the sentencing process.[88]
[88]Dumas [1988] VR 65, 71–2 (Young CJ, Murray and McGarvie JJ); Beckett [1998] VSC 219, [83] (Vincent J); Crosbie [2003] VSC 69, [35]–[37] (Kellam J); Acar [2012] VSCA 8, [45] (Weinberg JA); Hicks [2015] VSCA 14, [64] (Ashley, Whelan and Beach JJA); Todd [2020] VSCA 46, [59]–[60] (Ferguson CJ, Priest and Beach JJA).
In the present case, as discussed, the offences committed by the applicant were extremely grave. The applicant engaged in offending, which was objectively extremely serious, and which involved a very high level of subjective moral culpability on behalf of the applicant. As considered by the judge, his prospects of rehabilitation were, at best, qualified. While his Honour considered that the applicant’s prospects of rehabilitation were ‘somewhat more promising’ than those of Elliott, whose prospects were couched, by the assessing psychologist, in conservative terms, nevertheless, the judge had reservations in gauging the applicant’s prospects.[89] It could not be maintained that those qualified prospects of rehabilitation were such as to remove the present case from the category of cases which ordinarily attract a term of life imprisonment.
[89]Reasons, [207].
A sentence of life imprisonment, even one in respect of which a non-parole period is fixed, has been properly described as a dreadful sentence, involving the deprivation of the offender’s right to live at freedom in society for the remainder of his or her life.[90]
[90]R v DJH [1998] VSCA 108, [13] (Brooking JA, Phillips JA agreeing at [20], Charles JA agreeing at [21]).
In a case such as the present, the sentencing purposes of general deterrence, denunciation, specific deterrence and protection of the community were each of significant importance in the sentencing equation.
The offending by the applicant was extremely dangerous, and demonstrated a total disregard for human life and the right of other members of the community to live in peace and safety. It was of the utmost importance that the sentences imposed by the judge act as a powerful general deterrent, by constituting a clear and powerful message that any person, who might be minded to engage in such offending, will, on apprehension, spend the rest of his or her life in prison.
In addition, as an allied consideration, it was of primary importance that the sentence imposed by the judge constitute an unambiguous condemnation, by the Court, and as such by our society, of the total and utter disregard displayed by the applicant and Elliott for the sanctity of human life, which is the most fundamental value of our community.
It is quite evident that the applicant had demonstrated no remorse for his appalling offending, and that he had not demonstrated that he had achieved any insight into the enormity of the crimes that he had committed. In those circumstances, it was also important that the sentences imposed by the judge be of sufficient severity to act as a specific deterrent to the applicant, and to protect the community from him, unless and until he can achieve the appropriate realisation of the unequivocal evil of the crimes that he has committed.
Taking those matters into account, it can only be concluded that the sentences of life imprisonment imposed on the applicant, for each of the two murders committed by him, were open and appropriate. No lesser sentence could have sufficed to vindicate the important sentencing purposes that we have discussed.
Accordingly, the applicant has failed to demonstrate that the sentences of life imprisonment imposed on him, for the two murders committed by him, were manifestly excessive.
Further, for the reasons discussed above, the non-parole period of 27 years, fixed by the judge, was abundantly fair, taking into account the gravity of the offending, the applicant’s high level of moral culpability for it, and his total lack of remorse for, and insight into, it.
It follows that ground 3 of the application for leave to appeal against sentence must fail.

Summary of conclusions

For the foregoing reasons, the applicant has failed to succeed on the single ground of the application for leave to appeal against conviction, and has failed to succeed on any of the three grounds of his application for leave to appeal against sentence.
It follows that the application for leave to appeal against conviction and the application for leave to appeal against sentence must each be refused.

Charge	Offence	Maximum	Sentence	Cumulation
1	Murder	Life imprisonment	Life imprisonment	Base
2	Murder	Life imprisonment	Life imprisonment	Nil
3	Attempted murder	25 years’ imprisonment	12 years’ imprisonment	Nil
4	Attempted murder	25 years’ imprisonment	12 years’ imprisonment	Nil
8	Causing serious injury intentionally	20 years’ imprisonment	5 years’ imprisonment	Nil
Total Effective Sentence:		Life imprisonment
Non-Parole Period:		27 years
Other relevant orders:		Declaration (sentenced as a serious violent offender on charges 2–4, 8)

[2024] VSCA 108

28 May 2024