Kelly v The Queen
[2020] VSCA 171
•25 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0047
| TRAVIS KELLY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 June 2020 |
| DATE OF JUDGMENT: | 25 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 171 |
| JUDGMENT APPEALED FROM: | [2019] VCC 2012 (Judge Hampel) |
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CRIMINAL LAW – Appeal – Sentence – One charge of conduct endangering life, one charge of prohibited person possessing firearm – Applicant fired shot in broad daylight at departing car after occupants of car fired two shots at his house – Total effective sentence of 5 years’ imprisonment with non-parole period of 3 years – Crown concession that judge erred in finding that a matter was an aggravating factor when the finding was not open on the evidence – Whether error materially affected sentence – Whether individual sentences, order for cumulation, total effective sentence and non-parole period manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham | Kaczmarek Grigor Lawyers |
| For the Respondent | Mr P L Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA:
Introduction and summary
The applicant pleaded guilty to the charges set out in the table below and, on 29 November 2019, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Kelly [2019] VCC 2012 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Reckless conduct endangering life [s 22 Crimes Act 1958] 10 years 4 years Base 2 Prohibited person possess firearm [s 5(1) Firearms Act 1996] 10 years 3 years 12 months Total effective sentence: 5 years’ imprisonment Non parole period: 3 years Pre-Sentence detention declaration: 267 days Section 6AAA statement: 8 years’ imprisonment with a non-parole period of 6 years
The applicant seeks leave to appeal against his sentence on two grounds. First, that the judge erred in finding that the offending the subject of charge 2 was aggravated by the firearm being kept loaded in the applicant’s house in circumstances where there was no evidence that the firearm was being kept loaded. Secondly, that the individual sentences, order for cumulation, total effective sentence and non-parole period are manifestly excessive.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending
In March 2019, the applicant lived in a residential court, opposite parkland, in Bell Park. He resided there with his then partner and her seven year old son. On the morning of Thursday 7 March 2019, he was at home with his then partner in the master bedroom, which is located at the front of the house. At 9:47 am, two men stopped their car on the road outside the residence and one of them fired two shots at the house. One of the bullets hit a car parked in the driveway and the other went through the front master bedroom window and into a wall.
As the two men were driving away, the applicant ran onto the street with a semi-automatic handgun. He aimed the firearm at the car and fired a shot in its direction as it drove away (charge 1 – reckless conduct endangering life).
The applicant’s actions were captured on a CCTV camera located at a neighbour’s house. It can be inferred from the CCTV footage that the applicant discharged his firearm within seconds after the shots were fired from the car.
At 12:30 pm that same day, members from the Special Operations Group attended the applicant’s home. He complied with their request to come outside, where he was arrested. He gave information to police as to the location of the firearm, which police found in a set of drawers. Police also located a magazine containing a number of cartridges of ammunition. The firearm contained a loaded cartridge in the chamber (charge 2 – prohibited person possess firearm).
The applicant was interviewed by police and made the following admissions:
(a)He was at home with his partner on the morning of 7 March 2019 when he heard two loud bangs and realised that someone had fired shots at his house.
(b)He ran into the spare bedroom and grabbed the firearm, which he had hidden there, and ran out to the front of the house.
(c)When he got to the street, he noticed a car driving out of the court. He pointed the firearm in the direction of the car and fired it in the air over the car as a ‘warning shot’.
(d)He bought the firearm approximately two months before the incident, stating that it was ‘too good an opportunity to pass up’. He would not say from whom he had purchased the firearm, but said that it ‘cost him a bit’.
(e)He was angry at the time and that was why he fired the firearm at the car. He admitted that what he did was wrong and that he had placed others in danger by discharging the firearm.
Applicant’s personal circumstances
The applicant was 32 years of age at the time he was sentenced. He grew up in a loving and supportive family. He completed primary and secondary school. In his teenage years, he was diagnosed with ADHD and was prescribed dexamphetamine from ages 12 to 15.
After completing secondary school, the applicant engaged in some meaningful employment. During his teens and early twenties, he was competitive in lawn bowls. However, from his early twenties he began using methylamphetamine and engaging in criminal behaviour.
The applicant has a criminal history dating back to 2010 for offending including drug and dishonesty offences. In 2013, he was sentenced to 4 years and 6 months’ imprisonment with a non-parole period of 2 years and 6 months and fined an aggregate of $4,600 for: recklessly causing serious injury, trafficking a drug of dependence, handling stolen goods, dealing with proceeds of crime and harassing a witness, possession of a drug of dependence, possession of cartridge ammunition without a permit or licence and possession of other ammunition without a licence. He became a prohibited person as a result of that sentence. At the time of the present offending, he had been living in the community for approximately 18 months after having completed the sentence imposed in 2013.
After completing that sentence, the applicant obtained employment installing temporary fencing and had been able to provide for himself, his then partner and her seven year old son. At the time of the offending, he had been in a stable relationship with his then partner for 16 months. This relationship ended while the applicant was on remand for the present offending.
The applicant continued to be supported by his mother and sister who offered for him to live with them when he is released from prison. He also has the support of his father, from whom he was previously estranged.
While on remand for the present offending, the applicant performed work cleaning floors and distributing meals and was appointed a billet.
Plea hearing
At the plea hearing, it was common ground between the parties that when police located the firearm in the set of drawers, it was loaded. However, nothing was said at the plea hearing as to whether the firearm was loaded before the applicant retrieved it to fire at the departing car or whether it was generally kept loaded in the house.
The applicant relied on a report of a psychologist, Gina Cidoni, dated 18 August 2019. Ms Cidoni noted test results which showed that the applicant had poor impulse control, poor judgment, elevated paranoia and persecutory ideas. She stated that the results also revealed extremely low ego strength, indicating that the applicant could be unreliable, egocentric and irresponsible. Ms Cidoni stated that the applicant had difficulty learning from experience or planning ahead. She also stated that the applicant was of low average intelligence.
Sentencing remarks
The judge described the offences and the circumstances of the offending as serious.[2]
[2]Sentencing remarks [7].
In relation to charge 1, the factors that the judge pointed to as demonstrating the seriousness of the offending included the fact that the discharge of the firearm was retaliatory and that the applicant did not take the time to stop and consider his actions. The judge said that the retaliatory nature of the offending, in the circumstances, added to its gravity and the danger posed. In addition, the judge stated:
The firearm was clearly easily accessible to you and it must have been loaded, given the short space of time between the firing of the two shots at [the applicant’s] house and [his] emerging from [his] house with the loaded firearm and shooting.[3]
[3]Sentencing remarks [8].
The judge further stated that the applicant’s house was in a residential area and the time of day at which the offending occurred meant that it was highly likely that there were other people in the vicinity. She said that although the applicant had stated that his intention was to fire a warning shot over the roof of the car, there was a significant risk that it would go into the car or somewhere else where members of the public, including children, may have been.[4]
[4]Sentencing remarks [9].
As to charge 2, the judge stated that it was ‘a serious example’ of that offence.[5] She considered that it was ‘highly likely … [that the firearm was] loaded at the time [the applicant] picked it up’.[6] The judge stated that to have a firearm of that type, being a semi-automatic pistol, ‘loaded, easily accessible and unsecured in a house occupied, not only by [him], but by [his] partner and a child, adds to the gravity’.[7]
[5]Sentencing remarks [10].
[6]Sentencing remarks [10].
[7]Sentencing remarks [11].
The judge stated that firearms pose a significant risk to the community and that ‘firearms in the hands of impulsive people who believe they are at threat from others armed with firearms are a particularly dangerous combination’.[8] She considered that general deterrence, denunciation and just punishment were important sentencing factors. She also stated that it was clear from the circumstances of the offending, the applicant’s prior convictions and the findings of Ms Cidoni, that specific deterrence and protection of the community had a role to play in sentencing the applicant.[9] She further stated that the principles of totality and parsimony applied.[10]
[8]Sentencing remarks [12].
[9]Sentencing remarks [34].
[10]Sentencing remarks [35].
The judge took into account the applicant’s prior convictions, which she stated were ‘significant’ for someone aged 32.[11] The judge stated that the applicant had moved quickly from relatively minor offending to much more serious offending.
[11]Sentencing remarks [26].
The judge took into account the applicant’s early guilty plea and the continuing support of his family. She also had regard to the following matters in mitigation. The applicant made admissions to police, which, other than declining to identify from whom he had bought the firearm or who he thought may have shot at him, were full admissions. He assisted police to locate the firearm. He came out of the house when requested by the Special Operations Group and surrendered to them, which ensured the safety of his then partner, neighbours, passers-by and the police involved in his arrest.
The judge found that the applicant’s prospects of rehabilitation were best described as ‘guarded’.[12]
[12]Sentencing remarks [25], [34].
Ground 1: Whether the firearm was kept loaded
Before this Court, the Crown conceded that the issue of whether the firearm was loaded prior to the applicant accessing it on the occasion of the offending was not directly raised at the plea hearing and that the parties did not have the opportunity to make submissions on it.
Accordingly, it was common ground that the judge’s exercise of the sentencing discretion in relation to charge 2 was infected by specific error. However, there was no agreement as to whether the error was such as to warrant a less severe sentence than the sentence imposed by the judge for charge 2.[13]
[13]See Criminal Procedure Act 2009 s 280(1)(a).
The applicant submitted that, as the judge treated the firearm being loaded as an aggravating factor, she must have imposed a materially higher sentence for charge 2 than she would have imposed if she had not made the error. He relied on the fact that, in her sentencing remarks, the judge made repeated mention of the firearm being loaded when he retrieved it.[14] Accordingly, so it was said, the error warranted this Court re-sentencing him to a less severe sentence.
[14]See [18], [20] above.
The Crown submitted that, given that the firearm and the ammunition were not in a secure location such as a gun safe and were easily accessible, the judge’s determination that the firearm was loaded could not have materially increased the sentence imposed. The Crown argued that the sentence was appropriate in all the circumstances and that no different sentence should be imposed for charge 2.
In our opinion, the Crown properly conceded that the judge erred in finding that the firearm must have been loaded, as this was not the subject of evidence or any admission on the plea. However, the judge’s error in finding the firearm was loaded and treating this as an aggravating factor would not have made any material difference to the sentence.
The substance of the aggravating circumstance was that the firearm and ammunition were not kept in a secure location at the applicant’s home but were readily accessible and the firearm was capable of being retrieved and discharged quickly, thus creating a dangerous environment.[15] The fact that the applicant was able to fire a shot at the departing car very soon after the shots were fired at his house indicates that the firearm and ammunition were in close proximity to each other and that the firearm was capable of being swiftly loaded and discharged. On this basis, it made little, if any, difference to the creation of the dangerous environment — about which the judge was concerned — whether the firearm was already loaded or was placed so that it could be readily loaded and discharged.
[15]The offence of possession of a firearm while a prohibited person can be aggravated by the fact that a firearm was kept unsecured and within easy reach. See DPP v Graoroski [2018] VSCA 332, [36] (‘Graoroski’).
For the reasons discussed under ground 2, the sentence of 3 years’ imprisonment and the cumulation of 12 months of that sentence for charge 2 were appropriate in all the circumstances. Accordingly, although specific error has been established, we are not satisfied that a less severe sentence should be imposed. Accordingly, leave to appeal will be refused in respect of ground 1.
Ground 2: Manifest excess
The applicant submitted that when regard is had to his early plea of guilty, his admissions to police and his lack of prior convictions for firearms offences or for being a prohibited person in possession of a firearm, the individual sentences and order for cumulation were productive of a total effective sentence and non-parole period that are manifestly excessive.
In relation to charge 1, the applicant emphasised the fact that the offence was not premeditated but rather was committed impulsively in response to the shots that were fired at his home. He said that, whilst those shots did not justify his offending, they contextualised it. He submitted that his offending could not be characterised as vigilantism, as it differed from conduct of offenders who sought to take the law into their own hands by, for example, seeking to enforce a drug debt.
In relation to charge 2, the applicant relied on the following statement in Berichon v The Queen:
The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. … 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 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. [16]
[16](2013) 40 VR 490, 496 [26]; [2013] VSCA 319 (citations omitted).
The applicant submitted that his offending fell within the first of the abovementioned categories.
The applicant contended that the cumulation of 12 months that was ordered in respect of the sentence for charge 2 was manifestly excessive because there was overlap between the offending the subject of charges 1 and 2. Relying on Director of Public Prosecutions v Le,[17] he submitted that the offending the subject of both charges arose out of a single course of conduct.[18]
[17][2019] VSCA 258, [62] (‘Le’).
[18]See [61]–[62] below.
The applicant relied on a number of so-called comparable cases where the offender was sentenced to a similar or lower sentence than that imposed on him, even though the offending in those cases was said to be more serious than his offending. He emphasised that the offenders in some of those cases, unlike him, had previous convictions for firearms offences or had previously been convicted of being a prohibited person in possession of a firearm. The cases on which the applicant particularly relied were Salapura v The Queen,[19] Ah-Kau v The Queen,[20] Director of Public Prosecutions v Graoroski[21] and Le. These cases are discussed below. The applicant submitted that a comparison of the sentences imposed in these cases and the sentence imposed on him indicated that the latter was wholly outside the range of sentences reasonably open to the judge.
[19][2018] VSCA 255 (‘Salapura’).
[20][2018] VSCA 296 (‘Ah-Kau’).
[21][2018] VSCA 332.
The Crown submitted that, in the light of the circumstances of the offending, the judge was correct to conclude that the offending was a serious example of each offence. The Crown argued that the judge also appropriately took into account all matters in mitigation on which the applicant relied, together with the principles of totality and parsimony. It contended that specific and general deterrence must be given substantial weight in cases where an offender has decided to take the law into his or her own hands in a manner that is patently dangerous.
According to the Crown, the order for cumulation properly represented the separate criminality of the applicant as a prohibited person possessing the firearm and was reasonably open.
The Crown submitted that the cases on which the applicant relied do not establish that the sentence imposed by the judge was wholly outside the applicable range or indicative of something that had gone obviously wrong in the exercise of the sentencing discretion. The Crown argued that sentences imposed in the cases on which the applicant relied, and other cases,[22] are indicative of a range of sentences within which the sentence imposed by the judge fell. The Crown relied particularly on Zogheib v The Queen,[23] which we discuss below.
[22]The cases to which the Crown referred included R v Rudd (2009) 23 VR 444; [2009] VSCA 213, R v Shafik-Eid [2009] VSCA 217, R v Sahari (2007) 17 VR 269; [2007] VSCA 235, R v Bradley [2007] VSC 418.
[23](2015) 257 A Crim R 454; [2015] VSCA 334 (‘Zogheib’).
In our opinion, ground 2 is not made out.
The offending the subject of charge 1 was very serious, having regard to the following:
(a)The applicant fired a shot at a moving car in a residential street in broad daylight, thus creating a very real risk of serious injury or death not only to the occupants of the car but also local residents and other members of the community who were in the vicinity of the car. He showed a complete disregard for their rights.
(b)The applicant did not fire a warning shot vertically in the air but rather fired in the direction of the departing car. Self-evidently, a shot fired down a suburban street was highly dangerous, as there would have been few barriers to protect anyone who may have been in the vicinity.
(c)At the time the applicant discharged the firearm, neither he nor the other occupants of the house — or their property — were at risk, as the car being driven by the two men who had shot at the house was some distance down the road. Accordingly, firing the shot at the departing car was a gratuitous and senseless act.
(d)Whilst the discharge of the firearm was impulsive and reactive, rather than premeditated, it was retaliatory in nature. Although the applicant acted in anger, he knew that his actions were wrong and placed others in danger.
The offending the subject of charge 2 was also very serious, having regard to the following:
(a)As we have stated in the context of ground 1, the firearm and the ammunition were not in a secure location in the house but were readily accessible.
(b)The firearm was a very dangerous weapon, namely a semi-automatic pistol with a magazine containing multiple cartridges.
(c)The applicant possessed the firearm for approximately two months prior to the offending the subject of charge 1. Accordingly, there was a substantial period in which the applicant committed the offending the subject of charge 2 which was independent of the offending the subject of charge 1.
The two categories of cases discussed in Berichon, as set out at [34] above do not represent a prescriptive framework for assessing the seriousness of the offence of possession of a firearm while a prohibited person. The task of the sentencing court is to impose a sentence that is just, having regard to the circumstances of the offending and those of the offender.[24] The fact that the conclusion was not open in the present case that the applicant possessed the firearm in association with some ongoing criminal activity and the absence of any prior conviction for the possession offence, do not necessarily mean that his offending cannot be regarded as very serious.
[24]DPP v Dalgliesh (2017) 262 CLR 428, 433–4 [4]–[7]; [2017] HCA 41.
Having regard to the above analysis, denunciation, protection of the community and general deterrence were paramount sentencing considerations.
General deterrence was particularly important in relation to charge 1 in the light of the fact that the applicant’s offending was retaliatory in nature. The courts have repeatedly emphasised that the sentences for individuals who take the law into their own hands and commit crimes in order to resolve real or perceived grievances must be sufficiently high to deter others from adopting that course. For example, in Zogheib, this Court said the following:
Rather than contacting police, the appellant took the law into his own hands.
…
The appellant’s conduct, and such conduct by like-minded individuals, simply cannot be countenanced in a civilised society. In such a case, considerations of denunciation and general deterrence must be given substantial weight.[25]
[25]Zogheib (2015) 257 A Crim R 454, 475 [89], 477 [98]; [2015] VSCA 334.
General deterrence was also important in relation to charge 2 in the light of elevated community concern about prohibited persons possessing semi-automatic and other dangerous firearms.
Specific deterrence was also an important sentencing consideration in the present case due to the applicant’s prior offences for recklessly causing injury and possession of ammunition without a permit.
Having regard to the gravity of the applicant’s offending and the sentencing considerations to which we have referred, the sentences imposed for each of the charges, whilst stern, were well within the range of sentencing options reasonably available to the judge.
We accept that the applicant was entitled to the benefit of his guilty plea, admissions to police and the other mitigating factors to which the judge referred. However, these factors are fully reflected in the sentences imposed by the judge. In their absence, the sentences would have been substantially higher.
The cumulation of 12 months for the offending the subject of charge 2 had due regard to the principle of totality and was appropriate in the circumstances. For the reasons already discussed, it represented very serious separate offending.
Counsel for the applicant drew the Court’s attention to a number of ‘comparable’ cases in an effort to establish that the individual sentences and the degree of cumulation ordered on the sentence on charge 2 were outside the available range. The respondent’s counsel also referred to a number of sentencing cases. It must be acknowledged, however, that whilst so-called comparable cases can be treated as yardsticks which can assist in identifying the relevant sentencing range, such cases are not to be treated as precedents to be applied or distinguished.[26]
[26]DPP v Ristevski [2019] VSCA 287, [2]; Smith v The Queen [2020] VSCA 159, [103].
We have considered all the cases to which we were referred. It is not necessary for us to discuss all of them. It is sufficient to refer to Salapura, Ah-Kau, Graoroski, Le and Zogheib.
In Salapura, the 22 year old offender pleaded guilty to three indictable offences, namely, causing serious injury recklessly, aggravated burglary and possessing a firearm while a prohibited person. He was sentenced to 3 years’ imprisonment, with cumulation of 9 months, for the possession charge. The three grounds on which he sought leave to appeal against his sentence did not allege that any aspect of his sentence was manifestly excessive.
The offending in that case involved Salapura and a co-offender breaking into a home armed with handguns with the intention of stealing a cannabis crop they erroneously believed was at the property. When they were confronted by one of the occupants, Salapura fired his handgun six times, hitting the occupant three times in the leg. The other occupant then stabbed Salapura in the upper body with a kitchen knife, seriously wounding him. Salapura had a number of firearm convictions, including possession of a firearm while a prohibited person. It is clear that, as possession of the handgun featured in all three charges, the principle of totality strongly influenced the sentence and order for cumulation in respect of the possession charge.
In Ah-Kau, the 36 year old offender pleaded guilty to one charge of aggravated burglary, one charge of theft, one charge of kidnapping, one charge of being a prohibited person in possession of a firearm and one charge of intentionally causing injury. The possession charge involved Ah-Kau possessing a firearm when he and a co-offender were approached by a passer-by outside a property from which they were placing items into a vehicle. Another person was the victim of the other offences. Ah-Kau was sentenced to 3 years and 6 months’ imprisonment for the possession charge, with cumulation of 2 years on the sentence for the kidnapping charge. He had three previous convictions for being a person in possession of an unregistered firearm. This Court rejected a submission that the cumulation of 2 years — which was double the cumulation ordered in the present case — was manifestly excessive.
In Graoroski, the 37 year old offender was sentenced to a combination sentence comprising a total effective sentence of 7 months’ imprisonment with a 2 year community correction order for the offences of reckless conduct endangering life and possession of a firearm while a prohibited person.
The circumstances of the offending were as follows. Three men, who were wearing gloves and balaclavas, entered Graoroski’s bedroom at 3:30 am with the intention of stealing drugs and money. One of the men carried a baseball bat and a machete. In the course of a struggle — which also involved Graoroski’s father who had come to his assistance — Graoroski sustained deep lacerations to his left ring and little fingers and to his head, abrasions to his neck and knees and bruising to various parts of his body. The three men fled Graoroski’s home and, as they did so, Graoroski fired a loaded shotgun — which he had kept behind the door of his bedroom — and shot one of the men in the left upper back, inflicting life-threatening injuries.
Graoroski told police that he was in fear for his life when he discharged the firearm, which he had bought from a friend three or four months earlier. He provided a signed statement and indicated his willingness to give evidence against the three men.
On appeal by the Director of Public Prosecutions, this Court held that the sentence was manifestly inadequate. It re-sentenced Graoroski to 18 months’ imprisonment for each of the charges and ordered cumulation of 6 months in respect of the sentence of possession of a firearm while a prohibited person. In imposing this sentence, the Court stated that it was impressed by the steps that Graoroski had taken towards rehabilitation and his ‘cooperation with authorities, his preparedness to give evidence against the men who invaded his home and his early pleas of guilty when there was a respectable defence available at trial, at least with regard to [the reckless conduct endangering life charge]’.[27] These significant mitigating factors are absent in the present case.
[27]Graoroski [2018] VSCA 332, [39].
In Le, when 14 police officers, under cover of darkness, attempted an armed forced entry of the 35 year old offender’s home through the front door and window, Le fired five shots towards the door and window. Four of the police officers sustained relatively minor physical injuries. Le fled the home but subsequently gave himself up to police. He pleaded guilty to 14 charges of reckless conduct endangering life and one charge of possessing a firearm while a prohibited person. The sentencing judge was not satisfied beyond reasonable doubt that Le knew that the 14 individuals were police officers. Le was sentenced to 3 years’ imprisonment for each of the conduct endangering life charges, and 12 months’ imprisonment for the possession charge. One of the reckless conduct endangering life charges was treated as the base sentence. Orders for cumulation were made in respect of some of the other reckless conduct endangering life charges but no cumulation was ordered in respect of the possession charge.
This Court dismissed an appeal against sentence by the Director of Public Prosecutions. The Court stated that, although the sentence was lenient, it was not persuaded that it was manifestly inadequate. In reaching this conclusion, the Court said that it would have ‘been artificial to ignore the fact that all the charges arose out of a single course of conduct that was committed over a very short period of time’ and that ‘in considering the level of criminality, it is necessary to have regard to totality’.[28] In our opinion, the extremely lenient sentence in Le turned on the unusual facts of the case and does not provide any assistance in the present case.
[28]Le [2019] VSCA 258, [62].
Zogheib involved two incidents of offending by the 31 year old offender. On 10 August 2013, four men in a station wagon attended at the front of Zogheib’s house and engaged in threatening behaviour. Zogheib produced a .32 calibre semi-automatic handgun and fired two shots in the direction of the station wagon and another car in his driveway and two shots in the direction of the station wagon as it was being driven away from his house.
On 19 August 2013, Zogheib erroneously believed that the two occupants of a Jeep driving back and forth past his house were associates of the four men. Zogheib and a co-offender entered the co-offender’s utility vehicle and the co-offender drove it close to the Jeep, blocking its path. Zogheib and the co-offender yelled at the occupants of the Jeep to get out of the car. Zogheib produced his handgun and pointed it at the occupants of the Jeep, placing them in immediate fear that they were going to be shot. When the Jeep managed to drive off, Zogheib and his co-offender pursued it at high speed. In the course of the pursuit, Zogheib fired at least three shots at the Jeep, one of which shattered the rear windscreen. When the utility caught up to the Jeep, Zogheib aimed the handgun directly at one of the occupants, before the Jeep made a U-turn and escaped.
In relation to the incident on 10 August 2013, Zogheib pleaded guilty to one charge of possession of a firearm while a prohibited person, for which he was sentenced to 12 months’ imprisonment, with no concurrency, and was acquitted by a jury of five charges of reckless conduct endangering life. In relation to the incident on 19 August 2013, Zogheib pleaded guilty to one charge of reckless conduct endangering life, for which he was sentenced to 5 years’ imprisonment, and one charge of possession of a firearm while a prohibited person, for which he was sentenced to 12 months’ imprisonment, the whole of which was ordered to be served concurrently with the other sentences. This Court dismissed Zogheib’s appeal against sentence. There is nothing in the sentences imposed on Zogheib that suggests that the sentences imposed on the applicant fell wholly outside the relevant sentencing range.
In summary, the sentences imposed in the cases on which the parties relied do not support the applicant’s contention that the individual sentences, order for cumulation or the total effective sentence in the present case are outside the available range.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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