Haddara v The King
[2024] VSCA 269
•14 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0109 |
| MOHAMMED HADDARA | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | MACAULAY and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 September 2024 |
| DATE OF JUDGMENT: | 14 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 269 |
| JUDGMENT APPEALED FROM: | DPP v Haddara (County Court of Victoria, Judge Wischusen, 17 March 2023) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant convicted of multiple offences including one count of discharge firearm at premises – Shots fired at occupied residence with shotgun in early hours of morning, from stolen car – Total effective sentence of 6 years, non-parole period of 4 years 3 months – Base sentence of 5 years 6 months for discharge firearm at premises – Whether base sentence manifestly excessive – Current sentencing practice difficult to discern because offence relatively new – Serious criminal conduct – Prominence given to deterrence, denunciation and just punishment – Sentence within permissible range – Leave to appeal refused.
Firearms Act 1996, s 131A(1).
AB v The Queen (1999) 198 CLR 111; Atkinson v The Queen [2021] VSCA 127, considered.
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| Counsel | |||
| Applicant: | Mr J O’Connor | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Milides Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MACAULAY JA
KAYE JA:
Shortly before 2:30 am on 26 January 2021, two shots from a 12-gauge shotgun were fired from a stolen Toyota SUV that pulled into the driveway of residential premises in Jacana. Buckshot fired from the gun struck the house, some of the pellets piercing into the interior. The applicant was in the car and, only several hours beforehand, had exchanged text messages with one of the occupants of the house in which he described another occupant as ‘a dog’. After recovering the stolen Toyota SUV, police detected the applicant’s DNA in the vehicle and he was arrested.
These events, and others, ultimately led to the applicant pleading guilty to two charges of theft,[1] one charge of discharging a firearm at premises,[2] one charge of being a prohibited person in possession of a firearm,[3] one charge of handling stolen goods,[4] two charges of possessing a drug of dependence[5] and several related summary offences. On 17 March 2023, he was sentenced in the County Court to a total effective sentence of 6 years’ imprisonment and ordered to serve 4 years and 3 months’ imprisonment before being eligible for parole.[6] From that sentence the applicant seeks leave to appeal.
[1]Contrary to s 74 of the Crimes Act 1958.
[2]Contrary to s 131A(1) of the Firearms Act 1996.
[3]Contrary to s 5 of the Firearms Act 1996.
[4]Contrary to s 88 of the Crimes Act 1958.
[5]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[6]DPP v Haddara (Unreported, County Court of Victoria, Judge Wischusen, 17 March 2023) (‘Sentencing Reasons’).
His sole proposed ground of appeal is that the sentence of 5 years and 6 months’ imprisonment, imposed as the base sentence for the offence of discharging a firearm at premises, was manifestly excessive. A judge of this Court, Taylor JA, refused leave to appeal.[7] The applicant then elected to have his application determined by the Court constituted by two or more judges.[8] Having heard his renewed application, we refuse leave to appeal. Our reasons follow.
[7]Haddara v The King [2023] VSCA 250 (‘Refusal Reasons’).
[8]Criminal Procedure Act 2009, s 315(2).
Background
It is sufficient that we repeat Taylor JA’s summary of the facts that led to the applicant being arrested and charged:[9]
The offending for which the applicant was sentenced is summarised as follows.
On 16 January 2021 a white BMW coupe that had been stolen about six months prior was found bearing stolen registration plates. Forensic analysis revealed the applicant’s DNA on the steering wheel and driver’s seat belt clasp (charge 1 — theft).
On 12 January 2021 a black Toyota SUV was stolen at knifepoint from its owners by persons unknown. In the early hours of 26 January 2021 Grace Marra was at her home in … Jacana, with two others. The black SUV drove past her house without lights on. A few minutes later, it parked in the driveway of that house.
Ms Marra observed bright light shining into the driveway and, soon after, two shots were discharged from a firearm within the SUV. Later ballistic examination determined that the firearm was a 12-gauge shotgun firing buckshot. It had been discharged with a relatively flat trajectory at the top of the driveway from which the block sloped down to the front window, which occupied almost the full width of the dwelling facing the street. One blast passed through the front window, through the lounge room and into the kitchen. The other struck the external brick wall above the front window.
At the time of the first shot, the three occupants of the house were sitting on couches in the front room. One of them was Maroun Mansour with whom the applicant had an issue. At about 10:30 pm on 25 January 2021 the applicant had exchanged text messages with Ms Marra in which he had stated that Mr Mansour was a ‘dog’.
On 27 January 2021 the black Toyota SUV was recovered. Upon analysis small particles of gunshot residue were detected and the applicant’s DNA was recovered from a mixed contributor profile.
Later on the same day the applicant was arrested and found to be in possession of a water bottle containing a thick clear substance (later determined to be 1,4‑Butanediol — charge 7), a zip lock bag containing a white crystalline substance (later determined to be methylamphetamine — charge 6), $1,400 cash (summary charge 20) and a hotel room key.
The key prompted the execution of a search warrant at a particular hotel room. Police found a garage fob and a Toyota key that operated the black Toyota SUV (charge 5 — handling stolen goods), a black taser (summary charge 27 — possession of a prohibited weapon), a further water bottle containing a thick clear substance (later determined to be 1,4-Butanediol — charge 7), a BMW key belonging to an unrelated stolen vehicle (charge 5 — handling stolen goods) and two capsules (later determined to be Pregabalin — summary charge 28 — possessing a Schedule 4 poison).
[9]Refusal Reasons, [5]–[12].
The sentencing reasons
After hearing the applicant’s plea in mitigation, Judge Wischusen sentenced the applicant as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
Indictment 1 Theft 10 years 6 months 1 month 2 Theft 10 years 9 months 1 month 3 Discharge firearm at premises 15 years 5 years and 6 months Base 4 Prohibited person possess firearm 10 years or 1,200 penalty units 2 years 3 months 5 Handling stolen goods 15 years 1 month N/A 6 Possess drug of dependence 1 year and 30 penalty units[10] 7 days N/A 7 Possess drug of dependence 1 year and 30 penalty units 7 days N/A Related Summary Offences
20 Deal with property suspected of being proceeds of crime 2 years 1 month N/A 27 Possess prohibited weapon 2 years or 240 penalty units 3 months 1 month 28 Possess Schedule 4 poison 10 penalty units Convicted and discharged N/A Total Effective Sentence: 6 years Non-Parole Period: 4 years and 3 months Pre-sentence Detention Declared: 779 days Section 6AAA Statement: Total Effective Sentence 9 years
Non Parole-Period 6 years 6 months
Other Relevant Orders:
1. Licences cancelled and disqualified from driving for 6 months.
2. Forfeiture orders.
[10]The maximum penalty for possessing a drug of dependence is 1 year and/or 30 penalty units if the court is satisfied, on the balance of probabilities, that the offence was not committed for any purpose related to trafficking in that drug of dependence. Otherwise, the penalty is 5 years’ imprisonment and/or 400 penalty units: Drugs, Poisons and Controlled Substances Act 1981, s 73(1). Charges 6 and 7 were put on the basis of possession for personal use only: Sentencing Reasons, [42].
After rehearsing the facts concerning the applicant’s offending, the judge turned to the applicant’s ‘extensive criminal history’. In particular, the judge noted that, since first being sentenced in 2014, the applicant had been before courts ‘at a rough count’ on seven further sentencing occasions. The offending for which the applicant was sentenced over that period included armed robbery, stalking, possessing weapons, reckless conduct endangering life, burglary, recklessly causing injury, theft of motor vehicles, a variety of drug offences and committing an indictable offence while on bail. The offending for which the applicant was being sentenced occurred approximately six weeks after the applicant’s release from prison and while he remained subject to a community corrections order.
The judge noted the matters advanced on the applicant’s behalf by his counsel, namely that the applicant:
(a)pleaded guilty — which was accepted by the judge as an early plea and that it was made during the currency of the COVID-19 pandemic;
(b)was educated until Year 11, was a talented junior footballer and, after leaving school, worked in his father’s panel beating business;
(c)descended into habitual drug use which interfered with his employment and led to a cycle of offending, incarceration, further drug use, more offending and lengthening prison sentences, so that by the age of 27, two thirds of his last six years had been spent in prison;
(d)had served 26 months on remand during the stringencies associated with the pandemic;
(e)enjoyed continued family support;
(f)experienced a two-year delay between his offending and his sentencing; and
(g)was relatively young — although, in light of his criminal history, the judge was unable to assess his prospects of rehabilitation as any better than ‘guarded’.
Counsel for the applicant accepted that the offending represented serious criminal conduct, and that only a term of imprisonment and a non-parole period would give appropriate weight to relevant sentencing considerations.
Commencing with the proposition that discharging a firearm at residential premises was an inherently serious crime, the prosecutor submitted that there were a number of aggravating features. They included that the pellets from one shot passed through the lounge room where the occupants were sitting and into the kitchen; the shots were fired directly at the residence and not merely as warning shots; the shooting occurred in furtherance of a grievance between the applicant and ‘Mel’ (that is, Mr Mansour); a stolen vehicle was used; the approach to the residence was stealthy; the applicant had been prohibited from possessing a firearm since at least January 2017; and the offences were committed within six weeks of the applicant’s release from an earlier term of imprisonment and while on a community corrections order.
In sentencing the applicant, the judge considered that the factors put forward in mitigation by counsel for the defence had to be balanced against the aggravating features identified by the prosecution. The judge gave significant weight to the purposes of general and specific deterrence, along with denunciation and just punishment.
Is the sentence imposed for discharging a firearm at premises manifestly excessive?
Applicant’s submissions
The applicant accepted that his task was to persuade this Court that the sentence of 5 years and 6 months’ imprisonment imposed on charge 3 for discharging a firearm at premises was ‘too heavy’, and one that ‘lies outside the permissible range of dispositions’.[11]
[11]Citing AB v The Queen (1999) 198 CLR 111, 160 [130] (Hayne J); [1999] HCA 46 (‘AB’).
The applicant pointed out that the sentencing judge had accepted that weight had to be given to all of the matters raised in mitigation by the applicant’s counsel. The applicant reminded the Court that those matters included: the hardship he had endured whilst on remand during the COVID-19 pandemic, steps he had taken towards rehabilitation whilst on remand, his family support, his guilty plea entered at the earliest available opportunity during the currency of the pandemic, his remorse, the delay of more than two years and one month between arrest and sentencing, his relative youth and his prospects of rehabilitation.
In oral submissions, counsel for the applicant emphasised that the period of delay was relevant for two reasons. The first was the hardship of experiencing remand during the COVID-19 pandemic (as already mentioned). The second was the opportunity which the applicant took whilst on remand to undertake various courses of education and therapy and thus demonstrate steps towards rehabilitation.
Counsel for the applicant noted that, on the plea, the prosecutor accepted that the applicant’s offending for discharging a firearm at premises was neither at the lower end of the scale of offending of its type, nor at the higher end. In support of that characterisation, counsel emphasised that the evidence could not establish that the applicant physically discharged the firearm. His plea was put on the basis that he was part of a joint criminal enterprise by way of agreement or understanding. Further, he had submitted, no one was harmed and there was no evidence that he was drug-affected at the time of the shooting.
In view of the offending being somewhere in the mid-range for offences of its type, and acceptance of all of the mitigatory factors that had been advanced, the applicant then pointed to some lesser sentences that had been imposed for the same offence in the cases of Diab v The King,[12] and Atkinson v the Queen.[13] Initially, the applicant contended that the sentence imposed on charge 3 in this matter was understood to be the highest sentence so far imposed for an offence contrary to s 131A(1) of the Firearms Act 1996 (the ‘s 131A(1) offence’). This submission could not be sustained in light of the sentence of 8 years and 6 months imposed in DPP v Bruce,[14] later upheld by this Court.[15]
[12][2023] VSCA 107 and Diab v The King (No 2) [2023] VSCA 112.
[13][2021] VSCA 127 (charges 6, 7 and 8) (‘Atkinson’).
[14][2020] VCC 1321.
[15]Bruce v The Queen [2022] VSCA 100, [7], [55] (Maxwell P and Kennedy JA) (‘Bruce’).
In oral submissions, counsel for the applicant referred to a number of other cases in which offenders had been sentenced for the same offence. Counsel did so for two main reasons. One was to demonstrate an aggravating factor that was present in other cases but not present in the current case. In several other cases, the offender well knew that a person was in the vicinity of the place where the gun was aimed when fired — for example, when a gun was fired at a door of a house immediately after a person closed it.[16] In the present case, the applicant submitted that the shots were fired at a house without the shooter knowing or being able to know where the occupants were situated, and that this was hence a less serious form of the offence.
[16]DPP v Taylor [2019] VCC 2220.
The second reason for referring to these other cases was to attempt to gauge the current sentencing practice in respect of the offence, to which the Court must have regard pursuant to s 5(2)(b) of the Sentencing Act 1991. The applicant submitted that the current sentencing practice did not support a sentence of five years and six months for offending unless it was, objectively, at the high end of seriousness for this type of offence. Except for one, all sentences identified by the applicant featured sentences of no more than five years and three months. The exception was Bruce. The applicant submitted that the sentence in Bruce was an ‘outlier’ and, in any event, partially explicable for other reasons.
By reference to a variety of features of either the offending or the offender, the applicant sought to argue that in each of those other cases the circumstances were more serious than the present case.
In short, the applicant submitted that the sentence imposed on charge 3 was manifestly excessive, and that it was outside the permissible range of sentences open to the court below.
Respondent’s submissions
The respondent pointed out that the s 131A(1) offence had been introduced by Parliament in 2018 in response to an increase in drive-by shootings.[17] In the second reading speech in respect of the bill that introduced the offence, the Minister for Police explained that the high maximum penalty (15 years’ imprisonment for the s131A(1) offence) recognised the seriousness and potentially lethal consequences of firearm use, particularly the dangers to the community posed by the firing or carrying of a loaded firearm.[18]
[17]Victoria, Parliamentary Debates, Legislative Assembly, 21 September 2017, 2964–5 (Lisa Neville, Minister for Police).
[18]Ibid.
Accepting that the judge gave weight to all matters put in mitigation, the respondent emphasised that the judge was also required to, and did, consider the gravity of the offending, the applicant’s prior convictions and his guarded prospects of rehabilitation. The respondent noted that the judge had agreed with the prosecutor’s submission that the applicant’s involvement in the shooting represented ‘serious criminal conduct’.[19] In oral submissions, the respondent emphasised all of the factors that the judge had identified as contributing to that level of seriousness.[20] Ultimately, the respondent urged this Court to take the approach that Taylor JA preferred in the Refusal Reasons. In those reasons, her Honour preferred to evaluate the objective seriousness of the offending by reference to certain measures of aggravated offending. Of the eight measures identified by Taylor JA, the respondent submitted that the applicant’s offending ‘ticks seven of the eight boxes’.
[19]Sentencing Reasons, [39].
[20]Ibid [47].
As well as pointing to the serious nature of the offending, the respondent argued that: the applicant’s criminal history was troubling; he had previously received the benefit of a full range of sentencing dispositions and yet had continued to offend; he was on a community corrections order at the time of this offending; and, in view of those matters, the judge appropriately concluded that his prospects of rehabilitation were ‘guarded’.
In response to the applicant’s arguments concerning lower sentences imposed in other cases, the respondent submitted that current sentencing practices — that is, sentences imposed in comparable cases — are but one factor to be considered as part of the sentencing judge’s instinctive synthesis.[21] Moreover, the respondent argued, the s 131A(1) offence is new, such that sentencing practices are still emerging and are of limited help.
[21]DPP v Dalgliesh (a pseudonym) (2015) 262 CLR 428, 447–8 [59] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41; citing R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39.
In oral submissions, the respondent expanded on this latter point. With reference to specific cases to which the applicant referred, the respondent argued that any disparity between sentences imposed in the ‘comparable’ cases and the sentence imposed on the applicant could be explained by:
(a)significant differences in the personal circumstances of the relevant offender – in this respect the respondent described, by way of comparison, relevant personal circumstances of the offender in the comparable cases: for example, those in DPP v Taylor[22] (limited prior convictions, traumatic upbringing); DPP v Khan[23] (limited criminal history, significant mitigatory matters); DPP v Henderson[24] (personality disorder); DPP v Fiscalini[25] (19 year old offender, reliance on Bugmy[26] and Verdins[27] principles, stabbed while in custody); and DPP v Diab (No 2)[28] (seriously injured whilst offending, limited prior convictions, good rehabilitation prospects);
(b)differences in the objective seriousness of the offending; for example, in Diab (No 2) where the offender fired his weapon under a perceived, albeit incorrect, belief that he was under threat; and/or
(c)the judge moderating the sentence for the s 131A(1) offence, to give effect to totality, where a larger sentence was imposed for another offence that was the base offence, as in Atkinson.[29]
[22][2019] VCC 2220.
[23][2022] VCC 2221.
[24][2021] VCC 652.
[25][2021] VCC 1523.
[26]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
[27]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[28][2023] VSCA 112 (‘Diab (No 2)’).
[29][2021] VSCA 127.
The respondent also referred to the analysis undertaken by Taylor JA of earlier sentences (including those referred to so far) to discern what lessons may be learned in relation to current sentencing practices for the s 131A(1) offence.[30] In addition to those cases referred to by Taylor JA, the respondent provided a further list, namely DPP v Black;[31] DPP v Fiscalini;[32] DPP v Alessawi;[33] and DPP v Braine.[34] The respondent argued that an analysis of all the cases reinforces the conclusion reached by Taylor JA that sentences of imprisonment for this offence have ranged broadly, between 15 months at the lowest and 8 years and 6 months at the highest. According to the respondent, an analysis of the cases shows that a mid-range or median sentence seems to fall between about four to six years.
[30]Refusal Reasons, [25]–[41].
[31][2019] VCC 2089.
[32][2021] VCC 1523.
[33][2023] VCC 1835.
[34][2022] VCC 798.
Addressing some specific submissions made by the applicant, the respondent argued that little distinction can be drawn between an offender who knows positively the location of occupants at the time of shooting, and an offender who shoots at the front room of a property known to be occupied (especially when the room was in fact occupied by three adults awake at the time). Responding to another point, the respondent argued that it was not particularly significant that the prosecution could not prove that the applicant was the actual shooter, as it was the applicant who had the grievance toward an occupant, and that grievance appeared to be the motivation for the shooting. In Bruce, for instance, the offender (who was sentenced for the s 131A(1) offence to 8 years and 6 months’ imprisonment) was not present at the shooting but had directed others to do the shooting on his behalf.
Emphasising that manifest excess is a stringent test that is difficult to satisfy, the respondent submitted that the judge had regard to all relevant mitigating and aggravating matters and imposed a sentence on charge 3 that reflected the gravity of the offending whilst giving effect to relevant sentencing principles.
Analysis and Conclusion
The ground of manifest excess will only succeed if it can be shown that the sentence was wholly outside the range of sentencing options available to the sentencing judge — or, as expressed by Hayne J in AB, that it was too heavy and lay outside the permissible range of dispositions. That is, the applicant must show that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. It has been described as a stringent requirement, difficult to satisfy.[35]
[35]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
Parliament indicated its view of the seriousness of the s 131A(1) offence by setting a maximum penalty of 15 years’ imprisonment.
The sentencing judge succinctly summarised the essential characteristics of the applicant’s offending in these terms:
… this was apparently a planned and carefully executed attack on a residence at which a person with whom you then held a grievance was present. It involved the use of a stolen vehicle, an attempt at a stealthy approach without lights in the small hours of the morning, and the discharge of two rounds of buckshot at the glass-fronted residence where the three people present in the front room, as a result only of good fortune, were not struck or injured. The offence was committed whilst you were subject to the conditions of a recently imposed community corrections order and at a time when you were a person prohibited from possession of a firearm for any purpose.[36]
[36]Sentencing Reasons, [47] (emphasis added).
In evaluating the seriousness of the applicant’s offending we readily adopt the approach taken by Taylor JA, by looking at specific considerations by which the objective seriousness of the offending may be assessed. We recognize that the factors identified by her Honour are neither a statutory formulation of considerations, nor an exclusive list of factors. Nonetheless, we agree that they provide a useful tool for analysis. Her Honour listed the following measures:
(a)The degree of premeditation and planning involved in the shooting, including the use of stolen or hired vehicles, the sourcing of a weapon and a ‘stealth’ approach to the target.
(b)The nature of the firearm used. Use of a semi-automatic or automatic high powered firearm will be more serious than a lower calibre weapon.
(c)The location of the target. If a house or vehicle is in a built-up area the risk to safety increases.
(d)Relatedly, the time of day of the shooting. The discharge of a firearm into a house in the early hours of the morning is a risk to sleeping occupants. The discharge of a firearm in broad daylight in a busy area is an equally serious risk.
(e)Knowledge by the offender that the targeted premises or vehicle is in fact occupied.
(f)The motivation for the shooting.
(g)The aim of the firearm and the degree to which bullets or pellets penetrate the target.
(h)The role played by the offender in the shooting.
(i)Whether the risk eventuated by any person being injured.[37]
[37]Refusal Reasons, [43].
As the sentencing judge correctly observed, the applicant’s offending involved premeditation and planning given that it featured the use of a stolen vehicle and a stealthy approach to the residence where ‘Mel’ was known to be present. Buckshot — designed to spread and thus impact a wide area — was fired from a 12-gauge shotgun, a powerful weapon. Two shots were fired into a residential house in a suburban neighbourhood. The shots were fired in the early hours of the morning, a feature which both indicates stealth and produces a risk to sleeping occupants. The applicant’s text message exchanges with an occupant before the offending demonstrates his knowledge that the house would be occupied and also reveals the motivation for the shooting. The shots were aimed at the house (not above it) and, indeed, buckshot penetrated into several rooms of the house. Because the applicant was the person who had the grievance with Mel, and was present in the car, it is clear he played an active role in the shooting.
We accept the respondent’s argument that, of the list of measures or features set out above, seven were present in the applicant’s offending. The only feature missing was the last; that is, no person was actually injured. All of this supports the judge’s conclusion that the applicant’s offending represented ‘serious criminal conduct’.
Notwithstanding the applicant’s plea of guilty and the other mitigating factors that the applicant identified and the judge took into account, we are simply unable to conclude that a sentence of 5 years and 6 months — a little over a third of the maximum penalty — was either too heavy or outside the permissible range of sentences available to the sentencing judge. Indeed, we consider that it lies comfortably within that range.
With respect to current sentencing practices for this offence, it is difficult to improve upon the analysis of Taylor JA in her Refusal Reasons. We do not intend to repeat the exercise her Honour performed. It is enough to set out and endorse her general conclusion and the principles that she relied upon:
This survey of the relevant authorities and sentences reveals a number of matters. First, that the comparison of offending behaviour with other examples of the same or a similar offence is always of constrained utility given the number of variables in both objective behaviour and subjective considerations. Nonetheless such an exercise may ‘assist by revealing a possible range or pattern of previous sentences’.[38] That said, the outer limits of the appropriate sentencing range are not ‘capped and collared by the highest and lowest sentences for similar offences hitherto imposed’[39] and what remains is a requirement for ‘individualised justice’.[40] Second, to the extent sentencing practices do reveal a pattern, its form and dimensions will be harder to discern where there are fewer sentences to compare.[41]
[38]Lieu v The Queen (2016) 263 A Crim R 173, 186 [46] (Beach and Kaye JJA); [2016] VSCA 277.
[39]DPP (Vic) v Dalgliesh (a pseudonym) (2015) 262 CLR 428, 445 [51] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41, quoting DPP v OJA (2007) 172 A Crim R 181, 196 [30] (Nettle JA, Ashley JA agreeing at 206 [71], Redlich JA agreeing at 206 [72]); [2007] VSCA 129.
[40]Elias v The Queen (2013) 248 CLR 483, 494–5 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); [2013] HCA 31.
[41]Refusal Reasons, [42].
Her Honour went on to observe that the sentence range of between 15 months and 8 years and 6 months was revealed by a ‘sparsely populated pattern of offending’, and that the disparity was ‘largely explained by differences in the personal circumstances of each offender and the consequential different weight placed upon various sentencing considerations’.[42] We agree with that analysis. The additional list of cases produced by the respondent on the hearing of the application for leave to appeal provides further examples of the range of sentences, and of the role of individual considerations, both as to the offence and the offender, in explaining those different sentences.
[42]Ibid [43].
We do not accept that the particular feature which the applicant urged us to view as an important point of distinction between his case and other cases — namely, the offender’s degree of certainty as to whether any person was in the line of fire — is of particular assistance to him in this case. An element of the s 131A(1) offence, to which he pleaded guilty, is that he had reckless disregard for the safety of persons at the time of the shooting. Whatever degree of consciousness is to be attributed to the word ‘reckless’ in this particular collection of words — which we do not need to decide — there is little relevant point of distinction between the firing of buckshot from a high-powered weapon into the glass front of a house known to be occupied, and a case in which a shooter fires a gun at a door knowing that a person is behind it. In both cases, it is plainly foreseeable that a person may be harmed. In this case, the fact that nobody was injured was not the product of precaution, or knowledge that nobody could be injured, but pure good fortune.
We agree with the statement made in Atkinson that it is ‘an inherently serious offence to discharge a firearm into premises or vehicles with a reckless disregard for the safety of others’.[43] Whether to settle a grievance, serve as a warning, vent anger, or as a sheer act of bravado, recourse to firearms to shoot at vehicles or premises cannot be tolerated in a civilised society. Doing so exhibits a mindset of lawlessness that is dangerous and frightening to the community generally. As well, it is likely to beget reprisal and escalating violence.
[43][2021] VSCA 127, [39] (Priest and T Forrest JJA).
Parliament evidently perceived that such shootings were increasing and needed to be met with stern deterrence. Courts would not be heeding Parliament’s intention, or respecting the legitimate expectation of members of the community to feel safe within their homes, if they did not give strong prominence to the sentencing purposes of general deterrence, denunciation and just punishment when sentencing those who choose to use firearms in this way.
In short, it is important that sentences, in cases such as this, be sufficient to constitute a clear message that any person, who is minded to engage in the form of dangerous conduct committed by the applicant, will, on apprehension, lose his or her right to be at liberty in society for a substantial period of time. The advantage they seek to obtain, acting unlawfully, will, so far as the sentencing system can justly achieve, be met with a corresponding disadvantage by way of penalty. Further, it is necessary that the sentence imposed, in such cases, unequivocally denounce the kind of conduct engaged in by the applicant as being entirely alien to the basic principle of a peaceful, law abiding community.
In the applicant’s case there must be added the purpose of specific deterrence, given his lengthy criminal history and the fact that, at the time of offending, he was a person prohibited from possessing a firearm and was subject to the conditions of a community corrections order.
The application for leave to appeal must be refused.
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