Fazal v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0220

MAIWAND FAZAL	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2024
DATE OF JUDGMENT:	12 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 161
JUDGMENT APPEALED FROM:	[2023] VCC 1970 (Judge Morrish)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Application for leave to appeal – Sentence – Conduct endangering life – Firearm offences – Possessing a drug of dependence – Handling stolen goods – Whether judge was correct to find that applicant possessed firearms for the purpose of criminal activity – Whether total effective sentence was manifestly excessive – Leave to appeal refused.

Criminal Procedure Act 2009, s 280(1)(b).

Berichon v The Queen (2013) 40 VR 490, applied; R v Storey [1998] 1 VR 359; Acciarito v The Queen [2019] VSCA 264; Sultan v The King [2022] VSCA 205, considered; R v Graham (2007) 178 A Crim R 467, discussed.

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Counsel
Applicant:		Mr P J Smallwood
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Lauren Tye Legal
Respondent:	Office of Public Prosecutions

BOYCE JA:

On 2 October 2023, the applicant pleaded guilty in the County Court to charges contained in Indictment M11317106. The charges were as follows: two charges of handle stolen goods (one rolled-up),[1] two charges of possession of an unregistered general category handgun,[2] one charge of conduct endangering life,[3] two charges of possession of a drug of dependence,[4] and one charge of possession of an unregistered category A longarm.[5] The applicant also pleaded guilty to the following related summary offences: two charges of possession of cartridge ammunition,[6] one charge of assault with a weapon (rolled-up),[7] one charge of deal with property suspected of being proceeds of crime,[8] and one charge of non-prohibited person in possession of a category B longarm without a licence.[9]
[1]Contrary to s 88 Crimes Act 1958.
[2]Contrary to s 7B Firearms Act 1996.
[3]Contrary to s 22 Crimes Act 1958.
[4]Contrary to s 73 Drugs Poisons & Controlled Substances Act 1981.
[5]Contrary to s 6A(1) Firearms Act 1996.
[6]Contrary to s 124(1) Firearms Act 1996.
[7]Contrary to s 23 Summary Offences Act 1966.
[8]Contrary to s 195 Crimes Act 1958.
[9]Contrary to s 6(2) Firearms Act 1996.
On 3 November 2023, the applicant was sentenced as follows.

Charge on Indictment	Offence	Max Penalty		Sentence	Cumulation
1	Handle stolen goods	15 years		18 months’ imprisonment	6 months
2	Possession of an unregistered general category handgun	1st offence: 600 penalty units or 7 years. 2nd or subsequent offence: 1200 penalty units or 10 years		9 months’ imprisonment	3 months
3	Conduct endangering life	10 years		3 years	Base
4	Possession of a drug of dependence	400 penalty units or 5 years or both		18 months’ imprisonment	6 months
5	Possession of an unregistered category A longarm	1st offence: 120 penalty units or 2 years. 2nd or subsequent offence: 1200 Penalty Units or 10 years		3 months’ imprisonment	Concurrent
6	Possession of an unregistered general category handgun	1st offence: 600 penalty units or 7 years. 2nd or subsequent offence: 1200 penalty units or 10 years		9 months’ imprisonment	Concurrent
7	Possession of a drug of dependence	400 penalty units or 5 years or both		12 months’ imprisonment	4 months
8	Handle stolen goods (rolled-up)	15 years		2 years’ imprisonment	9 months
Related Summary Offences
4	Possession of cartridge ammunition without licence	40 penalty units		Fined $500	N/A
8	Assault with weapon (rolled-up)	40 penalty units or 2 years’ imprisonment		6 months’ imprisonment	2 months
14	Deal with property suspected of being proceeds of crime	2 years		3 months’ imprisonment	Concurrent
25	Possession of cartridge ammunition	40 penalty units		Fined $500	N/A
31	Non-prohibited person in possession of category B longarm without licence	120 penalty units or 2 years		6 months’ imprisonment	Concurrent
Total Effective Sentence:			5 years and 6 months’ imprisonment
Non-Parole Period:			3 years
Pre-sentence Detention Declared:			343 days
Section 6AAA Statement:			Total Effective Sentence: 8 years and 3 months Non Parole-Period: 5 years and 6 months
Other Relevant Orders: 1. Forfeiture and disposal orders.

The applicant seeks leave to appeal against sentence. His proposed grounds of appeal are in the following terms:
Ground 1: There was an error in the sentence first imposed arising from the applicant having been sentenced on the basis that his possession of firearms was associated with ongoing criminal activity.
Ground 2: The sentences imposed were manifestly excessive.
For the reasons that follow, I consider that the application for leave to appeal must be refused.

Summary of key facts

At the time of his offending the applicant was 27 years of age. The offences to which he pleaded guilty related to four separate incidents that occurred in the first half of 2021.

Incident 1

On 18 January 2021, the applicant inspected a unit that was available for lease at a commercial premises in Rowville. When untenanted, the property owner stored his Jayco caravan at the unit. The applicant came across the caravan parked at the property during the inspection.
At the time of applying to lease the unit, the applicant had with him a Victorian driver’s licence. The licence was not in the applicant’s name. The applicant presented the licence to the leasing agent. The applicant signed the rental application for the unit in the name on the licence. The applicant identified himself as that person. The applicant’s then girlfriend signed the lease as a witness.
Under the terms of the lease, the applicant took formal possession of the unit on 19 February 2021. Two days prior to this, the property owner’s caravan was stolen from the unit. There was damage to the front glass door of the unit and the roller door was left open. CCTV footage from 12:09 am that morning depicted the applicant’s vehicle entering the premises and then leaving six minutes later towing the caravan.
The stolen caravan was later discovered on 12 March 2021 at another commercial premises leased by the applicant. These facts formed the basis of charge 1.

Incident 2

On the morning of 22 March 2021, the applicant was seen in a vehicle by police outside the leased Rowville property. The applicant left the premises at 11:40 am. Ten minutes later, police recovered from a premises nearby a black satchel bag that the applicant had left there earlier. The bag was found to contain the following items:
(a)A modified semi-automatic .22 calibre firearm with a black/brown handle and silver barrel (charge 2 on the indictment);
(b)One .22 calibre ammunition round (related summary offence, charge 4);
(c)$295.55 in cash; and
(d)A keyring with assorted keys and a black/blue fob.
While police were still at the premises, the applicant’s father attended and told police that he was there to collect a ‘black man handbag’. He said that the applicant had left it there.
Police seized the bag and all of its contents. A DNA swab was taken, and subsequent analysis confirmed the presence of the applicant’s DNA on the firearm.

Incident 3

On the evening of 1 June 2021, the applicant was inside his apartment at Harbour Esplanade at Docklands. He was there with two other men. He had in his possession a Marlin 1885 45-70 Government Lever Action rifle.
At approximately 8:45 pm, the applicant fired the rifle in the direction of the Melbourne Central Business District (‘Melbourne CBD’). The bullet entered through the window of an apartment located at 585 La Trobe Street. The occupant of this apartment was then seated at his dining room table. The bullet entered through a west-facing window, struck the kitchen sink tap and microwave, and finally came to rest on the floor of the apartment (charge 3 on the indictment). The victim called 000 and police attended. A crime scene was established.
Expert analysis of the scene, conducted by a ballistics expert, established that the most likely position from which the shot was fired was the vicinity of the applicant’s apartment in Docklands.
On 25 June 2021, police executed a search warrant at the applicant’s apartment. They located the Marlin 1885 45-70 Government Lever Action rifle (related summary offence 31). Ballistics analysis confirmed that the firearm projectile recovered from inside the La Trobe Street apartment was discharged from this firearm. The applicant’s DNA was found on the trigger of the firearm.
When the rifle was seized by police, a telescopic sight was attached to the receiver which had a range of between two to seven magnifications. The scope was tested for accuracy.

Incident 4

On 23 June 2021, the applicant was driving a dark grey Maserati outbound on the Monash Freeway. The two victims of this particular offending were travelling in a truck on the Freeway. The applicant cut the truck off with his car. The driver of the truck sounded the truck’s horn and both of the truck’s occupants threw their hands up in frustration. The applicant slowed his vehicle down and changed lanes so that his vehicle was parallel to the passenger side of the truck.
The applicant pointed a small silver revolver at the victims and said: ‘What did you say, cunt?’ (related summary charge 8 — ‘rolled-up’). The truck slowed down and continued outbound on the Monash Freeway. The applicant’s vehicle came to a stop in the emergency lane.
A firearm matching the description provided by the victims was seized when police executed a search warrant at the applicant’s apartment on 25 June 2021. That weapon was found to contain two live and three spent ammunition rounds. The applicant’s DNA was found on the firearm (charge 6 on the indictment).

Handle stolen goods

On 24 June 2021, whilst conducting surveillance of 241 Harbour Esplanade in Docklands, Armed Crime Investigators identified two stolen vehicles parked in close proximity to the applicant’s vehicles within the car park. The vehicles were a 2018 Range Rover Sport wagon (registration 1MA1UD) valued at $70,000 and a 2018 Mercedes C300 sedan (registration AWX208) valued at $60,000 (charge 8 on the indictment).

Execution of search warrant

On 25 June 2021, police executed a search warrant at the applicant’s apartment in Docklands. The applicant failed to come to the front door. The police forced entry into the apartment.
A search of the apartment revealed that it was a one bedroom, one bathroom, apartment. The applicant was the sole occupant. During execution of the search warrant, a number of items were located and seized:
(a)A silver apple iPhone in the toilet bowl;
(b)A Mercedes vehicle key within a vase on the dining table (belonging to vehicle AXW208) (Charge 8 on the indictment);
(c)A Range Rover key within a vase on the dining table (belonging to vehicle 1MA1UD) (Charge 8 on the indictment);
(d)$435 in cash within a vase on the dining table;
(e)A set of keys with a fob access token on the dining table;
(f)A black apple iPhone in a black wallet case on a coffee table within the loungeroom;
(g)Miscellaneous cards in the name of the applicant within the black phone wallet case;
(h)A business card in the name of someone else;
(i)A large multi-coloured nylon bag containing vacuum sealed bags of cannabis;
(j)One round .45 calibre ammunition casing (spent) within a ‘Gucci’ suitcase;
(k)A black bag containing the following firearms within a storage cupboard in the lounge/dining area:
i.A Marlin 1885 45-70 Government Lever Action rifle (related summary offence 31);
ii.A sawn-off over/under shotgun (charge 5 on the indictment);
(l)One box of Winchester Super X 12-gauge shotgun cartridges;
(m)One Box of Remington 45-70 ammunition rounds;
(n)A black plastic clip case containing a handgun and ammunition in the storage cupboard in the lounge/dining area:
i.A zip lock bag containing four shotgun cartridges and two spent .45 calibre rounds;
ii.A homemade silver revolver containing two live and three spent ammunition rounds (charge 6 on the indictment);
iii.Two boxes of CCI brand .22 calibre ammunition rounds;
(o)A black ‘Tommy Hilfiger’ satchel on the TV cabinet in the lounge area;
(p)A plastic zip lock bag containing methylamphetamine in a drawer of the TV cabinet (charge 7 on the indictment);
(q)A combination safe within the wardrobe of the bedroom containing:
i.$8,960 in cash.
ii.Multiple identification cards/documents in various names.
iii.A Victorian Drivers Licence in the name of another individual.
iv.An Australian passport in the name of the applicant.
(r)A Maserati Ghibli sedan bearing registration plates BDB228 in the car park;
(s)A 2016 Porsche 911 coupe bearing registration plates AZX102 in the car park.
The total weight of the cannabis located within the apartment was 2.26kg of cannabis L. (charge 4 on the indictment).
The total quantity of Australian currency was $9,395 (related summary offence 14).
The various types of cartridge ammunition seized formed part of related summary offence 25.
Whilst conducting a search of the premises, investigators observed damage to the balcony glass (splintering) and aluminium framed balustrade (indentation and scratching). As a result, a ballistic and tool mark examiner from the Victoria Police Forensic Science Centre attended and conducted an examination of the damage.
Ballistics confirmed that the damage to the aluminium balustrade was caused by a fired bullet.

The plea

The applicant relied on his early pleas of guilty, his conditions in custody during the period of the COVID–19 pandemic, his limited prior criminal history, delay, and what were said to be the applicant’s strong prospects of rehabilitation.
Senior counsel for the applicant, on the plea, submitted that the applicant had ‘totally lost his way’ during the period when Melbourne was in the grip of the pandemic. Prior to COVID–19, the applicant had operated a successful landscaping and excavating business. He owned a home which he rented out. The applicant had been living with his mother. The applicant had limited prior convictions. These related to selling goods with a falsified trademark. As a result of the pandemic the applicant could not sustain his business and was struggling to pay rent and his mortgage. He started to smoke marijuana and take amphetamines more regularly. He began to suffer from depression and anxiety. He was prescribed various medications. The applicant relied on letters and reports provided by various medical health professionals.
Senior counsel submitted that the applicant became a ‘user/dealer’ in drugs. The applicant would purchase marijuana in kilogram lots as well as methylamphetamine (also in large amounts). He would trade drugs with his friends in the hope that he could secure his supply of drugs for nothing. The applicant thus mixed more regularly with people who took, and dealt in, illicit drugs. Senior counsel had this to say on behalf of his client:
Curiously the government introduced some rental relief, the state government and mortgage relief. In December the 11th we know he’s at the doctor because he’s prescribed some antidepressants. But what’s now out of control is no work or very patchy work, debt. He’s now using drugs foolishly to avoid the stresses and the strains of everyday life, which means and this does him no credit, he becomes a user/dealer. So what you do is you buy your marijuana in kilogram lots or you buy your methylamphetamine in larger amounts. You then trade amongst your friends. You try to get your — you believe or kid yourself you’re going to get your drugs for nothing that way, and that you’re not really a drug dealer.
But I'm instructed that that’s the reality of it. What goes with that is the lifestyle that you’re now mixing more regularly with other people who are locked down, locked in, taking drugs, dealing in drugs, paranoia sets in, you’re scared of getting caught. You’re scared of the people you’re dealing with. So what then happens is that in 2022, at page 6 of the chronology, the lease of the factory is way behind and there’s all sorts of problems there.
…
I'm told that the notion of possession of firearms comes from what he had was probably a highly raised level of paranoia in relation to the people he was dealing with and the quantity of drugs that he was taking, that he was being watched and followed and surveyed and picked on. That for some reason in his addled drug state he thought he would arm and protect himself.[10]
[10]Emphasis added.
In June 2021 the applicant was arrested and placed in custody. This was the applicant’s first time in custody. Senior counsel for the applicant emphasised that the applicant was first imprisoned during the pandemic and this meant that his experience of custody was made more burdensome.
On 3 June 2022, after some 343 days in custody, the applicant was released on bail and underwent four months at a rehabilitative facility known as The Cottage Residential Rehabilitation Centre. The applicant successfully completed all rehabilitative stages set by the Centre. The applicant abstained from drug use and regularly saw a psychologist.
At the time of his plea the applicant had complied with bail and was working. By the time of sentence, the applicant had spent some 518 days on bail. The applicant was supported by his family. He was able to rely on positive references from family, friends and work colleagues.
The prosecutor emphasised the seriousness of the applicant’s offending and its breadth of scope. The prosecutor emphasised the importance of general deterrence, protection of the community and denunciation when it came to the offending that involved firearms. It was submitted that it was ‘mere luck’ that the endangerment offending did not in fact cause serious injury or death.

The reasons for sentence

The sentencing judge considered general deterrence to be ‘a significant sentencing factor’ when it came to the handling stolen goods offending.[11]
[11]DPP v Fazal [2023] VCC 1970, [62] (‘Reasons’).
As to the commission of the offence of reckless conduct endangering life, the judge considered that:
This must be regarded as a serious offence, and general deterrence is a significant sentencing consideration. In particular:
(a) [The applicant] shot … randomly into a densely-populated business and residential area. Thus creating the very real risk of serious injury or death to any member of the community. In so doing, [the applicant] showed complete disregard for their welfare;
(b) At the time [the applicant] discharged the firearm [the applicant was] not under any threat of personal violence — no one had threatened [the applicant] and there is no suggestion that [the applicant was] acting in self-defence; and
(c) There is no suggestion that [the applicant] committed this act because [his] reasoning in decision-making was impaired.
In these circumstances, I consider this to be a serious example of this category of offence.[12]
[12]Reasons, [64]–[65].
The judge also considered general deterrence to be a paramount sentencing consideration when it came to the various firearms offences. The judge considered that the range and quantity of firearms possessed by the applicant was of ‘serious concern’.[13] Three of the four firearms were unregistered; none were securely stored. All firearms were capable of discharge and they were located alongside ammunition. The sawn-off shotgun had been modified to make it easier to carry and conceal. Importantly her Honour found that:
Given the context in which the firearms were seized, I am satisfied that they were possessed for the purpose of criminal activity. I am satisfied that at least one of the firearms was used in relation to a criminal offence currently before this Court. The others were located in [the applicant’s] apartment, alongside ammunition, drugs of dependence, stolen goods, and $9,395, suspected of being the proceeds of crime. It is also conceded that [the applicant was] engaged in trafficking drugs of dependence at the relevant time. That said, there is some overlap between [the applicant’s] possession of two of the firearms and some of the offences on the indictment:
(a) The charge of reckless conduct endangering life; and
(b) The related summary charge of assault with a weapon.
As such the Court must be careful to avoid inflicting double punishment.[14]
[13]Reasons, [70].
[14]Reasons, [71] (emphasis added).

In respect of the drug possession offences, the judge noted that the principles of ‘general deterrence, denunciation and condemnation, and protection of the community’ constituted ‘dominant sentencing factors.’[15]
[15]Reasons, [72].
Lastly, the judge considered the rolled-up assault charge that was connected with the incident on the Monash Freeway. The judge regarded this as ‘a serious example of this category of offence, notwithstanding the fact that no actual violence was inflicted.’ The judge noted the offence ‘occurred in broad daylight, in the middle of a busy freeway.’ Her Honour considered, in the instance of this offending, that general deterrence was also an important sentencing consideration.[16]
[16]Reasons, [74]–[75].
The judge then turned to the applicant’s background and upbringing. The judge offered the following description:
[The applicant is] now aged 30 years. [The applicant is a] child of two Afghani refugees, who fled Kandahar for Australia in 1980, during the Soviet-Afghan War. Although [the applicant was] not born until 1993, I have no doubt that [the applicant’s] parents’ experience impacted upon [the applicant’s] upbringing in Australia. [The applicant’s] father worked at the Victoria Market selling off-brand shoes, and [the applicant’s] mother was admitted as a legal practitioner in the Supreme Court of Victoria in 2004. [The applicant’s] parents separated in 2006, when [the applicant was] aged 13 years, as a result of [the applicant’s] father’s ice addiction.
[The applicant] left school in 2009 and began an apprenticeship as a carpenter. And in 2012, [the applicant] undertook a building, construction, survey and project management course at Holmesglen TAFE, whilst also working at the markets on weekends.
Between 2015 and 2019, [the applicant was] employed in various positions in the building, landscape and excavation industry, before starting [the applicant’s] own business in 2019, with the purchase of a second-hand excavator and tipper truck.[17]
[17]Reasons, [79]–[81].
The judge took into account the applicant’s pleas of guilty. Her Honour considered that these pleas were entered early and entitled the applicant to the necessary statutory discount. The judge noted that the applicant had avoided the cost and inconvenience of a trial and had spared witnesses the inconvenience of giving evidence. The judge was satisfied that the applicant’s pleas indicated a level of remorse and were of ‘enormous social utility’. The applicant had ‘facilitated the course of justice’. Additionally, the judge took into account the particular utilitarian benefits which arose due to the pandemic’s impact on court lists.[18]
[18]Reasons, [104]–[106]
The judge took into account the potential impact that COVID–19 might have upon the applicant’s service of a sentence of imprisonment.[19]
[19]Reasons, [107].
The judge read out, as part of her reasons, a letter that the applicant had written. Whilst the letter was relevant to remorse, and was corroborated, the judge noted that the letter ‘makes no mention of the detail of [the applicant’s] offending, and says very little about [the applicant’s] reason for it.’[20]
[20]Reasons, [109]–[110].
The judge referred to the medical letters relied upon by the applicant. The judge observed that these letters were ‘silent on the question of whether there is any nexus between [the applicant’s] mental health condition and [his] offending.’ The judge considered, therefore, that the ‘medical evidence [was] insufficient to engage any of the principles enunciated in Verdins^[[21]].’[22]
[21]R v Verdins 16 VR 269; [2007] VSCA 102.
[22]Reasons, [111]–[114].
The judge noted that it was apparent that the applicant continued to enjoy the support of his family as well as members of the broader community.[23] The judge paid particular attention to the applicant’s successful completion of The Cottage rehabilitative program. The judge factored in the time spent by the applicant at the Cottage as ‘quasi pre-sentence detention’ in accordance with Akoka v The Queen.[24] In respect of the applicant’s prospects of rehabilitation, her Honour observed as follows:
[The applicant has] limited prior convictions and court appearances. [The applicant’s] participation in the residential rehabilitation facility, The Cottage, and [his] subsequent contribution to community and family, together with the work [he] invested to grow [his] business, all the while staying out of further trouble, enables me to find that [the applicant’s] prospects for rehabilitation are reasonably good.[25]
[23]Reasons, [115]–[118].
[24][2017] VSCA 214; Reasons, [119]–[126].
[25]Reasons, [129].
The judge accepted that there had been a period of delay caused, in large part, by the pandemic. The judge noted the applicant had experienced the stress of having the present matters hanging over his head.[26]
[26]Reasons, [127].
The judge accepted the prosecution submission which identified the various paramount sentencing considerations. The judge agreed with the prosecution that it was ‘sheer luck’ that no one had been injured when the applicant fired his weapon into the Melbourne CBD. The judge observed that the applicant had provided ‘no, or no satisfactory explanation for [his] possession of the firearms’. The judge concluded that the applicant’s possession of the firearms was of ‘grave concern, particularly in the face of [his] admission that [he] trafficked in drugs of dependence to support [himself] during this period’.[27]
[27]Reasons, [147].
Ultimately the judge sentenced the applicant in the manner that is described above.

Applicant’s submissions

In support of ground 1, the applicant raised for consideration the following oft-quoted passage taken from the judgment of Redlich JA in Berichon v The Queen:[28]
The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in R v Graham and Armistead v R. The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence. The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order. Such sentences will be appropriate where the firearm is, for example, possessed in the context of a criminal activity to provide security or as a means of enforcement. The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.[29]
[28](2013) 40 VR 490; [2013] VSCA 319 (‘Berichon’).
[29]Ibid [26] (citations omitted).
The applicant submitted that it was plain, when it came to the applicant’s possession of firearms, that the judge had aggravated the penalty by placing the applicant’s offending in the ‘second category of cases’ described by Redlich JA. But it was submitted that nothing beyond mere speculation could justify such a conclusion. It was submitted, moreover, that nothing said by senior counsel on the plea was apt to permit aggravating in this manner.
It was contended that to the extent senior counsel had suggested that the applicant had armed himself for his protection, this did not prove the necessary criminal connection or association. Senior counsel had said no more, it was submitted, than what was accepted in R v Graham[30] as being insufficient to prove the necessary connection. It was submitted that the applicant’s case was akin to Graham in the sense that the possession of firearms was ‘for protection purposes but not in the terms of protection during the course of trafficking activity’.
[30](2007) 178 A Crim R 467; [2007] VSCA 252 (‘Graham’) — a decision referred to by Redlich JA in the extract quoted above from Berichon. In Graham, ‘the appellant’s explanation given to investigating police’ for his possession of a firearm was ‘that he had retained the gun and kept it in the safe for peace of mind and to protect the family.’ It was accepted in Graham that this did not establish any connection with criminality.
As to ground 2, the applicant submitted that the total effective sentence and non-parole period were manifestly too long in light of the following factors:
(a)The hardship the applicant experienced on remand as a result of the response to the pandemic;
(b)The applicant’s four–month engagement in residential rehabilitation at The Cottage;
(c)The applicant’s abstinence from illegal drugs;
(d)The delay of more than two years and four months from his arrest in June 2021 until his sentence in November 2023;
(e)The applicant’s progress towards rehabilitation during that period of delay;
(f)The applicant’s work history prior to the offending and since leaving residential rehabilitation;
(g)The applicant’s prospects of rehabilitation;
(h)The applicant’s limited criminal history;
(i)The utilitarian value of the applicant’s guilty plea;
(j)The applicant’s acceptance of responsibility and remorse;
(k)The hardship that the applicant would likely confront if he were returned to custody given the pandemic;
(l)The support the applicant provides to his family, particularly his mother and girlfriend; and
(m)the statutory prohibition against the imposition of a sentence that is more severe than is necessary to achieve proper sentencing purposes.

Respondent’s submissions

As to the applicant’s ground 1, the respondent submitted that — particularly in light of senior counsel’s explanation to the sentencing judge concerning why the applicant had armed himself with firearms — the judge was plainly correct to find that the applicant’s possession of the firearms was aggravated in virtue of a connection or association with criminal activity.
As it was put orally by counsel for the respondent:
to be in possession of a firearm because one is paranoid, concerned about the nature of those with whom one is in contact with, as a result of being part of that criminal activity, the possession of that weapon must be seen as indirectly in the context of the connection to the criminal activity.
The respondent contended that it was not necessary that the firearm be ‘directly required or directly utilised in the act of the separate criminal offence’.
As to ground 2, the respondent submitted that each of the matters in mitigation relied on by the applicant had been taken into account by the sentencing judge. It was submitted that the three–year sentence for the reckless endangerment offence ‘was very close to the relevant median sentence of 2.92 years, reflected in the available sentencing statistics.’
It was submitted that the reckless endangerment offence had been properly characterised by the judge as a ‘serious example’ of offending of this nature. In oral submissions the respondent contended that the circumstance of discharging a firearm into the Melbourne CBD ‘ought attract really quite stern punishment to really give effect to denunciation, community protection and just punishment, among others, [as well as] general deterrence’. The respondent emphasised that ‘the potential for the [relevant] risk [of endangerment] to have been made good in that circumstance [was] very high’.
The respondent submitted that ‘[t]he overall criminality was very high — the charges covered serious examples of criminal conduct which occurred over a period of some months, and in multiple locations, across multiple incidents, and with a number of concerning features’. In all these circumstances, the respondent submitted that it was not reasonably arguable that the sentences imposed on the applicant were manifestly excessive.

Consideration

Ground 1

The approach to sentencing for firearm possession described by Redlich JA in Berichon has been applied by this Court on numerous occasions. But there appears to be flexibility in the approach. For instance, in Sultan v The King[31] this Court observed that:
the passage from the judgment of Redlich JA does not establish a prescriptive framework of fixed sub-categories of the offending in question which prescribe the manner in which a sentencing court must assess the gravity of the offending in a particular case. In each case, the assessment of the objective seriousness of the offending, and of the offender’s subjective culpability, must depend on an informed analysis of the particular facts of the case and the circumstances of the offender.[32]
[31][2022] VSCA 205 (‘Sultan’).
[32]Ibid [39] (Kennedy and Kaye JJA) (citation omitted).
Consistent with an approach that shuns ‘a prescriptive framework of fixed sub-categories’, this Court in Acciarito v The Queen[33] countenanced a ‘spectrum’ of cases of varying seriousness. As the Court in Acciarito put it:
In assessing the criminality of the offence of being a prohibited person in possession of a firearm, at one end of the spectrum is possession of a weapon unrelated to other criminal activities, and at the other end of the spectrum is the use of a weapon in the commission of another offence. Possession of a weapon in the course of committing other criminal activity, but without the actual or threatened use of the weapon, falls towards the higher end of the spectrum.[34]
[33][2019] VSCA 264 (‘Acciarito’).
[34]Ibid [55] (Niall and Ashley JJA).
The extent of any connection between an offender’s possession of firearms and criminal activity conducted by that offender will be a matter that will normally, obviously enough, need to be established by evidence. Because any connection of this nature is liable to aggravate penalty, it may be assumed that the connection must be established beyond reasonable doubt.[35] But what the authorities of Sultan and Acciarito appear to contemplate is that there may be a range of different forms, or types, of connection — some that result in more serious aggravation than others. As suggested in Acciarito, the actual use of a weapon in the commission of separate criminal activity may be a form of possession for the purpose of criminal activity that stands at the more serious end of the range.
[35]R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA), cited in Strbak v The Queen(2020) 267 CLR 494, 508 [32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); [2020] HCA 10.
In this case the simple objective circumstances that surrounded the applicant’s possession of the various weapons gave rise to at least a strong suspicion that those weapons were possessed in connection with, or for the purpose of, some form of criminal activity. One might appeal to the following matters: the number of firearms possessed; that three of the firearms were unregistered; that one firearm was a semi-automatic handgun; that a scope was attached to one of the rifles; that the firearms were potentially lethal; that two of the firearms were able to be concealed; and that the possession of the firearms occurred in conjunction (as to time and place) with the possession of stolen motor vehicles, a significant amount of money as well as drugs possessed for the purposes of trafficking.
The objective case for the Crown that the possession of the firearms was related to a criminal purpose seems relatively strong. To some minds the objective evidence might have been sufficient in itself to have made the necessary connection to the required standard. But once senior counsel told the judge during the plea that his client was a dealer in drugs; once the judge was told that the applicant had become paranoid and scared of people that he met in the drug milieu; and once it was made clear that it was for these reasons that the applicant had chosen to ‘arm and protect himself’; in these circumstances it strikes me that — far from erring as contended — the judge would likely have erred had she not aggravated as she did. This may not have been the establishment of a connection with criminality that stood right at the most serious end of the spectrum; but it seems to me that a relevant connection was established nevertheless. To adopt the very language of Redlich JA in Berichon, it was possession of firearms ‘where the firearm is, for example, possessed in the context of a criminal activity to provide security…’.[36]
[36]Berichon (2013) 40 VR 490, 496 [26].
It seemed to me that, in the end, the real essence of the applicant’s point was to suggest that whilst it was open to the judge to conclude that the applicant possessed the firearms generally as a form of security against the threat of persons connected with the world of drug trafficking; yet where it could not be established on the day of possession that the applicant was party to any particular act of drug trafficking it was not then open to find the aggravating connection proved. In fact the applicant might have been prepared to go even further, as exemplified by the following exchange with the bench at the oral hearing:
His Honour: So your submission is if he has the guns for security, which the judge is told, [is] because of the people who he’s dealing with in terms of his drug trafficking, even though the guns may not be taken to wherever it is that the drug trafficking is, then it [the possession of the guns] cannot be aggravated by virtue of the drug trafficking at all.
Counsel: That’s my submission.
It seems to me that if the sine qua non of the possession of a firearm is the offender’s engagement in criminality, then a relevant connection is established and it follows that the act of possession is open to be regarded as more serious than otherwise might be the case. To give the example that arose during oral argument: if a practicing drug trafficker kept weapons in his home so as to insure against the prospect of a ‘run-through’,[37] it strikes me that that person’s possession of firearms would qualify for Berichon-type aggravation even if all of the drug-trafficker’s actual drug deals were carried out away from the home and did not require any weapon to be transported to the location of the actual transaction.
[37]An occupational hazard, it seems, of conducting business as a drug-trafficker.
I do not take Graham to have decided any differently. It is true that the Court in Graham appeared to allow that there would be no aggravation on account of any connection with criminality in circumstances where an offender ‘retained the gun and kept it in a safe for peace of mind and to protect the family’. But nowhere in the report of Graham is it apparent that the offender’s need for ‘peace of mind’ arose in consequence of his own ongoing criminality. Indeed, as Redlich JA observed in Graham, at the point when the appellant possessed the firearm in question he ‘had not been involved in any ongoing criminal activity for some years’.[38]
[38]Graham (2007) 178 A Crim R 467, 471 [15] (Redlich JA).
I accept that the applicant’s case before the sentencing judge was — at least initially — to place in issue whether his possession of firearms was in any manner connected with criminal activity. That case had its difficulties for reasons already expressed. But, in my view, those difficulties became well-nigh insurmountable once senior counsel said what he said to the judge.
In all these circumstances I do not think it is reasonably arguable that the judge erred as alleged in ground 1.
Leave to appeal on this proposed ground must be refused.
But even if I am wrong and it is reasonably arguable that the judge had erred by aggravating the penalty on the firearm possession charges due to such possession being connected with a criminal purpose; I would still be disposed to refuse leave on this ground. The judge’s error would vitiate the individual sentences on the firearm possession charges and any order for cumulation made in respect of those charges. I cannot see, however, that reimposition of correct sentences on the firearm possession charges could result in any lesser order of cumulation than the three months’ cumulation that the judge in fact ordered (charge 2). In this sense, it is difficult to see how there could be any reasonable prospect that the Court of Appeal would reduce the total effective sentence despite the presence of the alleged error.[39]
[39]Criminal Procedure Act 2009, s 280(1)(b).

Ground 2

Lying at the heart of the applicant’s case for manifest excess were the steps that the applicant had taken to rehabilitate himself, most particularly the time that the applicant had spent at The Cottage. Counsel, at the oral hearing of this matter, candidly acknowledged that his case for leave under this proposed ground was contingent upon the effect of these steps taken towards the applicant’s rehabilitation.
It is true that in this case the applicant, over the first six months of 2021, had behaved in quite an extreme manner and seemingly quite out of character. The picture painted by senior counsel for the applicant before the sentencing judge was that the applicant had simply been unable to cope with the exigencies of being ‘locked-down’ over the period of the pandemic.
But the evidence before the sentencing judge revealed that just as the applicant had fallen into criminality, he had also shown that he was able to drag himself out of it. In view of the manner in which the applicant presented his case before this Court, the question is whether — in light of the applicant’s journey towards rehabilitation — it is reasonably arguable that the sentences imposed in this case are manifestly excessive.
One way of answering this question is to examine the sentence by reference to its essential constituent parts. First some assessment might be made of the base sentence (for if that sentence is too long, a reduction might be expected overall); secondly, some attention could be paid to the orders for cumulation (for even if other of the individual sentences are deemed excessive, leave may still be refused on the basis that there is no reasonable prospect of a reduction to the total effective sentence).
The endangerment offending was, I consider, particularly serious. The applicant fired his weapon into the Melbourne CBD — a densely populated business and residential area. As the judge noted, no explanatory reason was proffered for this act. As matters eventuated the bullet narrowly missed a member of the public. Conduct endangering life by means of the discharge of a firearm is a form of offending in respect of which general deterrence looms particularly large, as does denunciation. Sentences imposed in cases of this nature were surveyed by this Court, relatively recently, in Moran v The King.[40] The three-year term imposed here seems congruent with sentences that one usually finds in such cases.
[40][2024] VSCA 13, [58]–[62] (Walker and Boyce JJA).
Then, when one considers the orders for cumulation made in respect of the sentences imposed on the other individual sentences, those orders seem modest overall. Some cumulation had to be expected: the applicant’s offending was varied and extended across a considerable period. Whatever one might think of the cumulation ordered on charges one, four and eight, the levels of cumulation imposed for charge two and summary charge eight were very low; and the applicant was the beneficiary of substantial concurrency. I pause to observe that another sentencing judge might have imposed a much greater sentence on summary charge eight — the offence that involved the applicant brandishing a weapon at two members of the public who were innocently making their way down the Monash Freeway.
But, stepping back and viewing matters in terms of totality, it is hard to conclude that the sentences imposed here were ‘unreasonable’ or ‘plainly unjust’.
To the contrary, it appears to me that the sentencing judge carefully, and methodically, considered all relevant matters and brought those matters to bear upon the sentencing equation in a manner that fairly reflected both the objective seriousness of the offending as well as the factors that went in mitigation.
It is apparent, in particular, that the judge was keenly aware of the steps that the applicant had taken towards his rehabilitation, which included the applicant’s successful completion of the rehabilitative course at The Cottage. The judge was aware of the quasi custodial status that the applicant’s stay at The Cottage could represent. The applicant’s position at the plea (and, indeed, before this Court) was that the period that the applicant had spent on remand was sufficient and that parsimony required the imposition of a combination sentence constituted by gaol (time served) combined with a community correction order. I consider that the judge was correct to reject this suggested disposition. Nevertheless, such rejection did not mean that the applicant’s efforts at rehabilitation ceased to have mitigatory effect.
In the end, I am left unpersuaded that it is reasonably arguable that the sentences (inclusive of the total effective sentence and non-parole period) imposed by the judge are ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion’.[41] Notwithstanding the applicant’s prospects of rehabilitation, his offending was objectively serious. I consider that the sentences are within range.
[41]Lai v The King [2023] VSCA 151, [16] (T Forrest and Osborn JJA). See also Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
In my opinion, leave to appeal on ground two must be refused.

Conclusion

The application for leave to appeal must be refused.

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[2024] VSCA 161

12 July 2024