Haddara v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0109

MOHAMMED HADDARA	Applicant
v
THE KING	Respondent

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JUDGE:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2023
DATE OF JUDGMENT:	24 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 250
JUDGMENT APPEALED FROM:	DPP v Haddara (County Court of Victoria, Judge Wischusen, 17 March 2023)

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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

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CRIMINAL LAW – Application for leave to appeal – Sentence – Discharge firearm at premises – Sentence of 5 years 6 months’ imprisonment – Whether sentence manifestly excessive – Offender serving community correction order at time of offending – Offender had relevant criminal history – Prospects of rehabilitation guarded – Leave to appeal refused.

Firearms Act 1996, s 131A; Crimes Act 1958, s 31C.

Bruce v The Queen [2022] VSCA 100; Atkinson v The Queen [2021] VSCA 127; Diab v The King (No 2) [2023] VSCA 112, considered – DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Elias v The Queen (2013) 248 CLR 483, referred to.

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Counsel
Applicant:	Mr PJ Smallwood
Respondent:	Ms K Hamill
Solicitors
Applicant:	Milides Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

Introduction and summary

On 17 March 2023, following a plea of guilty in the County Court to seven indictable charges and three summary charges, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
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[1]	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.

[1]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: DPP v Haddara (County Court of Victoria, Judge Wischusen, 17 March 2023) [42] (‘Reasons’).

On 7 September 2023 the applicant was administratively granted an extension of time within which to file his notice of application for leave to appeal.
He now seeks leave to appeal sentence on the single proposed ground that the sentence imposed on charge 3 was manifestly excessive.
For the reasons that follow the application for leave to appeal against sentence should be refused.

Circumstances of the offending

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 Lorraine Crescent, 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).

The sentencing reasons

After summarising the applicant’s offending, the learned sentencing judge referred to the applicant’s ‘extensive and highly relevant’[2] criminal history, noting that the applicant was 25 when he committed the offences and 27 when he fell to be sentenced. His Honour also noted that six weeks before the commission of the offences the applicant had been released upon completion of an earlier sentence of imprisonment and commenced serving a community correction order (‘CCO’). The applicant’s criminal history included offences of armed robbery, stalking, possessing weapons, reckless conduct endangering life, burglary, recklessly causing injury, theft of motor vehicles and drug offences as well as bail offences and breaches of CCOs.[3]
[2]Reasons, [4].
[3]Reasons, [21]–[23].
Next the judge recorded that the applicant had been committed to stand trial in August 2021 and, following negotiations, entered pleas of guilty in June 2022.[4]
[4]Reasons, [25].
His Honour then summarised the submissions made on behalf of the applicant, both in writing and orally.
(a)The judge noted the early plea of guilty, its utilitarian value — particularly during the COVID-19 pandemic — and his finding that it was some indication of remorse.[5]
(b)His Honour took into account the applicant’s background and personal circumstances. The applicant was born and raised in Melbourne to parents of Lebanese heritage as the second child in a sibship of four. He was a talented junior footballer. The applicant was not academically inclined and left school during Year 11 as a result of behavioural issues and negative peer influences. He thereafter began work in his father’s panel beating business. Increasing drug use interfered with the applicant’s ability to maintain employment. He fell into a cycle of repeated offending and periods of incarceration.[6] The judge noted that at the age of 27 the applicant had spent two thirds of the previous six years in custody and the offending was connected with methylamphetamine addiction.[7]
(c)His Honour recorded that the applicant had spent 26 months on remand and that the custodial conditions were particularly onerous because of the pandemic.[8]
(d)Notwithstanding the COVID-19 restrictions, the judge noted that the applicant had attended and completed a number of rehabilitative courses and that the period of remand represented the longest period of abstinence from illicit substances since the applicant was quite young.[9]
(e)The judge noted that despite the applicant’s repeated troubles with the law and periods of incarceration, he still enjoyed the support of his parents, older brother and relatively new partner. The applicant was said to have been ‘much changed’ by the experience of being drug free on remand and determined to change his ways.[10]
(f)His Honour considered the delay of over two years since the applicant’s arrest, some of which was attributable to the interruption of trials in the County Court consequent upon the pandemic.[11]
(g)The judge noted the submission that the applicant’s relative youth and prospects of rehabilitation should be taken into account. However, the number of opportunities granted to the applicant by past sentencing dispositions had been ineffective. The applicant’s offending had, if anything, escalated. Despite the support of his family and not yet being at the point of being regarded as ‘unreclaimable’, the judge found his prospects of rehabilitation to be guarded.[12]
(h)As to the gravity of the offending, his Honour noted the applicant’s concession that only a term of imprisonment with a non-parole period would meet all relevant sentencing considerations.[13] With respect to charge 3, which his Honour noted to be a ‘relatively new offence’, the submission that the offending was neither at the higher nor lower end, but nonetheless represented serious criminal conduct, was accepted. His Honour also recorded that the applicant would be sentenced on the basis that he was party to an agreement that the premises be shot at and was present at the time that this occurred.[14]
[5]Reasons, [28].
[6]Reasons, [29]–[31].
[7]Reasons, [32].
[8]Reasons, [33].
[9]Reasons, [34].
[10]Reasons, [35].
[11]Reasons, [36].
[12]Reasons, [37].
[13]Reasons, [38].
[14]Reasons, [39].
Next, his Honour summarised the submissions made by the prosecution, again both written and oral.
(a)The prosecution advanced the ‘uncontroversial proposition’ that the discharge of firearms at residential premises is an inherently serious crime. The specific features of the applicant’s offending highlighted were that the pellets from one discharge passed into the house, striking the tiles and a kitchen cupboard; that the discharges were aimed at the residence (as opposed to being warning shots); that the discharges were in furtherance of the applicant’s grievance with Mr Mansour; the use of the stolen SUV and that the applicant had been a prohibited person in respect of the possession of firearms since at least January 2017.[15]
(b)His Honour noted that the offending was aggravated by the applicant having been released from custody some six weeks prior and having recently commenced serving a CCO.[16]
(c)The judge noted the submission that specific deterrence was of moment in the sentencing exercise in light of the applicant’s prior criminal history.[17]
[15]Reasons, [43].
[16]Reasons, [44].
[17]Reasons, [45].
His Honour then noted that both parties had provided authorities to assist with establishing current sentencing practice for the relatively new offence.[18]
[18]Reasons, [46]. These were Bruce v The Queen [2022] VSCA 100 (Maxwell P and Kennedy JA) (‘Bruce’); Atkinson v The Queen [2021] VSCA 127 (Priest and T Forrest JJA) (‘Atkinson’); DPP v Khan [2022] VCC 2221 (‘Khan’); DPP v Whyte [2018] VCC 1465 (‘Whyte’); DPP v Taylor [2019] VCC 2220 (‘Taylor’); DPP v Doodt [2021] VCC 1584 (‘Doodt’) and DPP v Smiljanic [2020] VCC 495 (‘Smiljanic’).
The judge then synthesised the parties’ submissions under the heading of ‘sentencing consideration’ in the following manner:
Against the matters raised in mitigation…must be balanced the fact that this was apparently a planned and carefully executed attack on a residence at which a person with whom [the applicant] 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 [the applicant was] subject to the conditions of a recently imposed community corrections order and at a time when [the applicant was] a person prohibited from possession of a firearm for any purpose. In my view, the circumstances here are such that general and specific deterrence must be given significant weight in the sentencing consideration. Further, I am called upon by the Sentencing Act to manifest the community’s denunciation of [the applicant’s] conduct and to otherwise impose just punishment.[19]
[19]Reasons, [47].

Applicant’s submissions

The core of the applicant’s submissions was that when a survey is undertaken of other cases involving offending against s 131A of the Firearms Act 1996 (‘Firearms Act’), it is reasonably arguable that the sentence imposed on charge 3 was manifestly excessive.
In oral submissions counsel undertook such a survey[20] and emphasised that the applicant, who could call on a number of matters in mitigation, was sentenced for an offence of ‘mid-range’ gravity yet still received a sentence significantly higher than in most other cases.
[20]The authorities are considered further below.

Respondent’s submissions

The respondent submitted that current sentencing practices are only one matter relevant to the sentencing exercise and, given that this offence is relatively new, such practices are yet emerging and of limited assistance.
Further and more broadly it was submitted that given the seriousness of the offending by the applicant, his criminal history and the limited matters in mitigation, it was not reasonably arguable that the sentence imposed on charge 3 was manifestly excessive.

Analysis

Section 131A of the Firearms Act was inserted in 2018 in response to an increase in ‘drive-by’ shootings.[21] The first two subsections are in the following terms:
(1)A person must not, with reckless disregard for the safety of any person, use a firearm to discharge a shot, bullet or other missile at a vehicle, vessel, aircraft, or premises.
Penalty: 15 years imprisonment.
(2)A person who, with reckless disregard for the safety of another, uses a firearm to discharge a shot, bullet or other missile at a vehicle, vessel, aircraft, or premises, while carrying out a serious indictable offence,[22] is guilty of an offence and liable to a term of imprisonment not exceeding 20 years.
[21]Victoria, Parliamentary Debates, Legislative Assembly, 21 September 2017, 2964 (Lisa Neville, Minister for Police).
[22]S 131A(4) of the Firearms Act provides that a ‘serious indictable offence’ for the purposes of s 131A(2) has the same meaning as defined in s 325(6) of the Crimes Act 1958, namely, ‘an indictable offence which, by virtue of any enactment, is punishable on first conviction with imprisonment for life or for a term of 5 years or more.’
The high penalties for these offences were established in recognition of 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’.[23]
[23]Victoria, Parliamentary Debates, Legislative Assembly, 21 September 2017, 2965 (Lisa Neville, Minister for Police).
Offending under s 131A was first considered in by this Court in Atkinson. The applicant in that case was charged with three counts of the aggravated form of the offence in s 131A(2) (charges 6, 7 and 8). The three separate occasions on which he discharged a firearm at a house with reckless disregard for the safety of another occurred whilst committing the serious indictable offence of stalking.
On the first occasion (charge 6), the applicant used a car belonging to an associate to travel to the premises of his ex-partner, MJ at about 4:30 am. He had possession of a .22 Remington brand bolt action rifle.[24] He fired two shots at MJ’s residence. The first hit the guttering. The second entered the lounge room window, travelled through the lounge room wall and became embedded in the wardrobe of an adjacent room, being a bedroom occupied by MJ’s grandmother. MJ and her new partner, BR, were home at the time. On the second occasion (charge 7) the applicant fired shots at BR’s residence from his own vehicle at about 3:35 am, hitting the garage roller door and passenger side rear panel of BR’s vehicle, which had been parked in the driveway. BR and his mother were in the house at the time. On the third occasion (charge 8), the applicant used his own car to approach MJ’s residence at about 4:30 am. The headlights were off. The applicant fired a shot at the house which hit the garage roller door. BR and MJ were in the house at the time.
[24]He was also a ‘prohibited person’ because less than five years had passed since he had been subject to a CCO with a supervision element: Atkinson [2021] VSCA 127, [7] (Priest and T Forrest JJA).
The applicant in that case received sentences of 4 years and 6 months, 4 years and 3 years and 6 months respectively for charges 6, 7 and 8. He also pleaded guilty to six other offences[25] and received a total effective sentence of 8 years and 1 month’s imprisonment with a non-parole period of 5 years.
[25]Stalking (two charges); damaging property; attempted arson; prohibited person in possession of firearm and possessing a drug of dependence.
In refusing the application for leave to appeal against sentence, Priest and T Forrest JJA said:
We are also unable to see that the individual sentences on charges 6, 7 and 8 are other than proportionate to the seriousness of the applicant’s offending. It is an inherently serious offence to discharge a firearm into premises or vehicles with a reckless disregard for the safety of others. And it will be remembered that, for the purposes of charge 6, the second bullet fired by the applicant travelled through the lounge room wall of the residence and became embedded in the wardrobe of the adjacent bedroom, occupied by MJ’s grandmother, in circumstances where both MJ and BR were present in the premises at the time. It was a very serious offence indeed.[26]
[26]Atkinson [2021] VSCA 127, [39] (Priest and T Forrest JJA).
Section 131A of the Firearms Act was next considered by this Court in Bruce. In that case the applicant received a sentence of 8 years and 6 months’ imprisonment for a s 131A(1) offence as part of a total effective sentence of 21 years and 6 months’ imprisonment for nine indictable offences[27] and five related summary offences.[28] That offending involved the use of an Adler lever action shotgun, which was capable of firing seven times without reloading. The applicant gave another man, McGlone, instructions for the shooting and drove him past the house to be ‘shot up’ in a hire vehicle. McGlone enlisted a driver, Brooke, to leave him free to discharge the weapon from the passenger seat. The shooting occurred at about 3:30 am at a house occupied by two people located in a built-up area. Four shots were fired. Pellets from those cartridges hit the mailbox, front window, garage doors, side fence, rubbish bin and internal walls of the premises. Some of the pellets penetrated the garage door as well as a metal fence and lodged in the hot water service of the next door premises. One occupant of the house, asleep on the couch, was covered in shattered glass. Following the shooting, the applicant asked questions of and gave further instructions to McGlone.
[27]The others were: trafficking in a large commercial quantity of drugs; possessing firearms in contravention of a firearm prohibition order; negligently dealing with proceeds of crime; arson; possession of a traffickable quantity of unregistered firearms; trafficking in a drug of dependence; attempting to obtain property by deception; and possession of a drug of dependence.
[28]Commit indictable offence whilst on bail; possess cartridge ammunition without licence; make false report to police; possess controlled weapon without excuse; and drive whilst authorisation suspended.

Maxwell P and Kennedy JA held that the sentence of 8 years and 6 months was within the range of appropriate sentences.[29] Rejecting an argument that it was ‘out of whack’ with the sentences imposed in Atkinson,[30] their Honours pointed to the relative ages of the applicants, the nature of the weapon used by each and the degree of planning, direction and supervision involved as well as considerations of specific and general deterrence and moral culpability.[31]
[29]Bruce [2022] VSCA 100, [55].
[30]Ibid [50].
[31]Ibid [52]–[54].
In Diab v The King (No 2)[32] the appellant fell to be sentenced on a s 131A(1) Firearms Act offence after a successful appeal against conviction on two charges of discharging a firearm being reckless as to the safety of a police officer contrary to s 31C of the Crimes Act.[33] The trial judge, prior to the successful conviction appeal, had imposed a sentence of 5 years and 6 months’ imprisonment for the s 31C Crimes Act offences as part of a total effective sentence of 7 years and 5 months’ imprisonment.[34]
[32][2023] VSCA 112 (Beach, Niall and Kaye JJA) (‘Diab’).
[33]See Diab v The King [2023] VSCA 107 (Beach, Niall and Kaye JJA).
[34]The other indictable offences were discharging a firearm reckless to the safety of a police officer; possession of a general category handgun without a licence; and handling stolen goods. There was also a single related summary offence (failing to store cartridge ammunition for Category A or B longarm in manner provided).
The shooting in that case occurred at about 4:50 am when the appellant was in a stationary Volkswagen sedan on a suburban road. Two police officers in an unmarked police vehicle pulled over to speak to two men they noticed outside the Volkswagen. The appellant was armed with a stolen .38 Smith & Wesson revolver. As the officers alighted from their vehicle, the appellant discharged his firearm. A bullet made contact with the driver’s side door of the police vehicle. One police officer discharged his weapon in response. The appellant was struck in the neck and shoulder and later underwent surgery to remove bullet fragments.
This Court re-sentenced the appellant to a term of imprisonment of 3 years and 6 months on the alternative charge of discharging a firearm at a vehicle contrary to s 131A(1) of the Firearms Act. In so doing, it was noted, inter alia, that he had displayed genuine remorse, had offered to plead to the s 131A(1) offence before his trial on the s 31C Crimes Act offences, had been seriously injured as a result of the incident, had limited previous convictions and had ‘reasonably good prospects of rehabilitation’.[35]
[35]Diab [2023] VSCA 112, [9]–[18] (Beach, Niall and Kaye JJA).
It is also useful to review County Court sentencing decisions with respect to s 131A(1) of the Firearms Act that were before the learned sentencing judge in this matter.[36]
[36]Whyte concerns offences of conduct endangering persons and use of firearm by prohibited person and is excluded from this survey.
In Taylor the offender received a sentence of 4 years’ imprisonment for a s 131A(1) offence as part of a total effective sentence of 4 years and 8 months.[37] The offender, in company with another, Black, attended a suburban house at the request of Black’s girlfriend, Bernek, who had been occasionally residing at that house. They arrived sometime after 7:00 am and found Bernek waiting with her belongings on the footpath outside the house. Once Bernek had entered their car, the two offenders, wearing disguises, knocked on the door. When it was answered and quickly closed again, Black discharged a sawn-off .22 firearm, narrowly missing the man at the door. Another occupant of the house heard the blast and felt some debris on his face. The offender had a limited and irrelevant prior criminal history, trauma in his upbringing, entered an early plea of guilty and was found to have had a lesser role than Black (who received a sentence of 5 years and 3 months’ imprisonment for the s 131A(1) offence).
[37]The other offences were being a non-prohibited person possessing a longarm that was unregistered (two charges) and two related summary offences of possession of ammunition without a licence and being an unlicensed Category A or B longarms firearms dealer.
In Smiljanic the offender received a sentence of 5 years and 3 months’ imprisonment for the s 131A(1) offence as part of a total effective sentence of 6 years.[38] The offender had a grievance with a man named Kelly. Together with another man, he drove to Kelly’s suburban home with a firearm. Kelly was present with his girlfriend and her young son. At least two shots of .22 calibre bullets were fired at or into Kelly’s home. One penetrated the boot of a car in the driveway and another the front bedroom window and lodged in a wardrobe. It could not be determined whether the offender or co‑offender fired the shots. Kelly emerged from the house with a semi-automatic handgun and fired at the retreating car. The offender was on parole at the time. He had previously been sentenced to a term of imprisonment for reckless conduct endangering life (and being a prohibited person in possession of a firearm) arising from the discharge of a firearm at a truck driver in the vicinity of a service station.
[38]The other charge was prohibited person in possession of a firearm.
In Doodt the offender received an aggregate sentence of 4 years’ imprisonment for the s 131A(1) offence and offence of being a prohibited person possessing a firearm. The offender was angry with a man named McGovern over a relationship with the offender’s girlfriend. McGovern lived with his mother in a suburban house. He was in his bedroom — which was in a converted garage — with friends and his mother was asleep when at about 4:10 am the offender drove to the house with a homemade firearm and discharged a .22 round through the garage door. The round struck one of McGovern’s friends in the elbow. The offender had a limited and irrelevant criminal history. He was on bail and subject to a CCO at the time. He had ‘realistic’ prospects for rehabilitation.
In Khan the offender received a term of imprisonment of 2 years in combination with a CCO of 30 months’ duration for a s 131A(2) offence. He also received a sentence of 12 months’ imprisonment in combination with a CCO of 30 months’ duration for the charge of recklessly causing injury, being the serious indictable offence for the purposes of the s 131A(2) charge. When also sentenced for being a prohibited person in possession of a firearm, his total effective sentence was 2 years and 2 months’ imprisonment with a CCO of 30 months’ duration.[39] The offender agreed to participate with others in a dispute with a man named Kyridacki. He attended a suburban car park as a passenger in a car. The driver of that car unsuccessfully tried to stop Kyridacki’s van. Another person struck the rear window of the van with a golf club. The offender opened the passenger door of his car while holding a shotgun. The van drove away. The offender and his associates followed on foot. The offender discharged a single shot into the passenger side of the van where Kyridacki was seated. The shotgun pellet damaged the door, dashboard and airbag cover and also shattered the window. Kyridacki had numerous puncture injuries and shotgun pellets were removed by incision from his head and shoulder. The offender had a limited and irrelevant criminal history. His early years in Pakistan were marred by violence, both domestic and otherwise, and at the time of sentence he required urgent psychiatric treatment. He also faced the prospect of deportation.
[39]The offender was also fined $100 for the related summary offence of possessing cartridge ammunition.
Although not seemingly expressly before the sentencing judge, reference should be made to two further County Court sentences.
In Director of Public Prosecutions v Henderson[40] the offender was sentenced to 3 years and 6 months’ imprisonment for a s 131A(1) offence as part of a total effective sentence of 5 years’ imprisonment.[41] The offender had driven McCabe, who was a sex worker, to a client and waited outside a suburban unit. Inside, there was a dispute about price. McCabe remained in the unit. The offender drove up the driveway and got out carrying a pistol. The client refused to open the door. The offender fired one shot through the glass panelling of the door, hitting the client in the thigh.
[40][2021] VCC 652 (‘Henderson’).
[41]The other offences were trafficking in a drug of dependence and being a prohibited person in possession of a firearm.
In Director of Public Prosecutions v Chircop[42] the offender was sentenced to 15 months’ imprisonment for a s 131A(1) offence as part of a total effective sentence of 18 months’ imprisonment with a 2 year CCO (and fines totalling $600). The offender received a message via Snapchat from his then girlfriend stating that she wanted to break up with him. He replied, ‘Watch what happens’. The offender then collected a firearm, drove to her home, parked in her driveway and, knowing his ex-girlfriend was at home, fired two shots from a shotgun through the passenger window towards her bedroom. The bullets entered the wood panelling and eaves above the bedroom window. The offender’s upbringing was marred by violence. His father had mistakenly fatally shot the offender’s aunt, intending to shoot his mother. As a consequence the offender suffers post-traumatic stress disorder (‘PTSD’). He had no prior criminal history for violence. He had reasonable prospects for rehabilitation.
[42][2022] VCC 1902 (‘Chircop’).
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’.[43] 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’[44] and what remains is a requirement for ‘individualised justice’.[45] 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.
[43]Lieu v The Queen (2016) 263 A Crim R 173, 186 [46] (Beach and Kaye JJA); [2016] VSCA 277.
[44]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.
[45]Elias v The Queen (2013) 248 CLR 483, 494–5 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
With respect to the sparsely populated pattern of offending against s 131A of the Firearms Act, sentences of imprisonment have ranged between 15 months on the one hand and 8 years and 6 months on the other. While the disparity is largely explained by the differences in the particular circumstances of each offender and the consequential different weight placed upon various sentencing considerations, these sentences and authorities reveal some measures by which the objective seriousness of such offending may be assessed. These are:
(a)The degree of pre-meditation 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.
The applicant argues that the sentence of 8 years and 6 months’ imprisonment in Bruce is an ‘outlier’ and should not be a block to the success of his application. Further, the applicant argues that the sentence in Atkinson involved the aggravated form of the s 131A(2) offence with a higher maximum penalty and yet was 12 months less than that imposed on the applicant. The applicant also argues that there is no meaningful difference between his ‘mid-range’ offending and that in Diab, Doodt, Chircop and Henderson, which received sentences of 3 years and 6 months, 4 years, 15 months and 3 years and 6 months respectively. Accordingly he submits that it is reasonably arguable that his sentence is manifestly excessive.
Rather than simply categorise the applicant’s offending as ‘mid-range’ it is more useful to look at the measures of objective seriousness of his offending.
The applicant was, with unknown others, in a stolen car that approached the target premises without headlights in the early hours of the morning. The applicant knew that Mr Mansour, a man with whom he had a grievance, and at least one other person, was present in the house. He was sentenced on the basis that he was complicit in the shooting. Two shots were fired directly at the front window of the house with a relatively flat trajectory. Some pellets made it two rooms deep into the dwelling.
Beyond those objective matters, there were factors relevant to the applicant that were absent in Atkinson, Diab, Chircop, Doodt and Henderson. In only one of those cases — Doodt — was the offender subject to a CCO at the time. Unlike the applicant, Doodt had a limited and irrelevant criminal history and realistic prospects of rehabilitation. On the other hand, the offender in Smiljanic, who received a term of 5 years and 3 months’ imprisonment, was on parole at the time of the offending. Like the applicant, it could not be determined if he or his co-offender had been the shooter. And, like the applicant, he had recently served a term of imprisonment for weapons offences. In this regard, it is to be noted that the 2018 sentencing reasons of Judge Cohen concerning the applicant were before the sentencing judge. Part of the offending for which the applicant was then sentenced was summarised by her Honour as follows:
On 4 October 2016 at approximately 3:30 pm you were driving a BMW car on the Princes Highway, Hoppers Crossing, this vehicle having been stolen some four days earlier. While driving it, you pulled alongside another vehicle, beeped the car horn, and showed the driver what appeared to be a handgun. It was in fact an imitation handgun. You then overtook another vehicle, and crossed lanes to reach an exit from the freeway, causing another driver to have to slow down to avoid a collision. You then drove behind that vehicle and pointed the handgun at the vehicle. You then stopped in the middle of an intersection, waving the handgun out of the window of the BMW and forcing other vehicles to stop to avoid it. These events give rise to Charge 1 of theft of the BMW, and Charge 3 of being a prohibited person possessing an imitation firearm.[46]
[46]DPP v Haddara [2018] VCC 1597, [10] (Judge Cohen).
There are other notable points of distinction between the applicant and the five other sentences he particularly relies upon. For example, Diab had been seriously injured as a result of the incident, had limited previous convictions, had reasonably good prospects of rehabilitation and was re-sentenced on the s 131A(1) charge after a successful conviction appeal. Chircop suffered PTSD as a result of serious trauma in his childhood and had no prior violent offending and realistic prospects of rehabilitation. The offending by Henderson was far more spontaneous and he had no prior history for violence or firearm offences.
The applicant has a significant and highly relevant criminal history. His prospects of rehabilitation are guarded.
It is clear from his careful Reasons that the sentencing judge was cognizant of all the matters urged in mitigation of sentence. It is also clear that his Honour undertook an appropriate analysis of the seriousness of the applicant’s offending and considered, as far as was possible, current sentencing practices for the s 131A(1) Firearms Act offence. In all the circumstances, his Honour was required to give significant weight to both specific and general deterrence, denunciation and just punishment.
Reviewing these matters and, particularly, the survey of cases urged by the applicant, I am not persuaded that it is reasonably arguable that the sentence of 5 years and 6 months’ imprisonment imposed with respect to charge 3 was wholly outside the range of options available to the judge, such that it was not reasonably open to him to arrive at the sentence imposed.

Conclusion

The application for leave to appeal must be refused.
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[2023] VSCA 250

24 October 2023