Crown v Accused

1 Jordan Fiscalini and Blake Wynne, you both pleaded guilty at the first reasonable opportunity to a number of offences, all committed in each other's company on 11 May 2020.

2 Fiscalini, you pleaded guilty to two armed robberies, one attempted armed robbery and one charge of being a prohibited person in possession of a firearm. These offences carry maximum penalties of 25 years', 20 years' and 10 years' imprisonment respectively.

3 Wynne, you pleaded guilty to one armed robbery, one attempted armed robbery, one charge of being a prohibited person in possession of a firearm and constructive murder, the maximum penalty for which is life imprisonment. Murder is a standard sentence offence, the standard sentence being 25 years' imprisonment.[1]

4 I will now briefly summarise the circumstances of your offences.

5 Sometime on the 11 May 2020, the two of you agreed that you would carry out armed robberies on drug dealers. You both wanted money and drugs. You, Fiscalini, had a loaded, sawn-off, double-barrelled shotgun, which you had acquired a few days before. You also had a car.

6 The two of you arranged through one Jacob Prior to meet up with one Steven Beeton in South Melbourne, ostensibly to purchase drugs. Prior accompanied you in your car to the meeting point in Dorcas Street. Around 7pm, Beeton got into your car. After a short conversation, you, Fiscalini, got out of the car, retrieved the loaded firearm from the boot (Charge 1)[2] and then threatened both Beeton and Prior with it. You pointed the gun at Beeton and demanded that he give you his phone, wallet and jewellery. Beeton handed over his phone and wallet (which had cards and about $500 in it) and two sterling silver bracelets. You, Fiscalini, also told Prior to hand over his stuff. You, Wynne, echoed these demands and tried to grab Prior who managed to get out of the car and get away. Beeton was eventually allowed to get out of the car and leave (Charges 2 & 3).[3]

7 You both then went to a Melissa Middleton's place in Endeavour Hills. She was your girlfriend, Wynne. She had purchased drugs from one Abdul Naurozi before. She contacted him and arranged for him to attend her place to supply her with the drug, GHB. When he turned up in a car driven by his friend, Stephanie Christopher, around 7:40pm, both of you went out to the car. You, Wynne, had the shotgun concealed on you (Charge 4).[4] The agreed prosecution summary of facts says you did not check whether it was loaded. You, Fiscalini, were armed with a knife. You, Wynne, got into the rear of the car, pointed the gun at Naurozi and said "Give me the juice," referring to the GHB. You, Fiscalini, opened the front passenger door of the car and brandished the knife at Naurozi who refused to hand over the drugs. You, Wynne, threatened to shoot him and struck him to the back of the head with the barrel of the gun. Shortly after, the gun went off (how is unclear). Gunshot penetrated Naurozi's face, killing him (Charge 5).[5] Significantly, it is not alleged by the prosecution that you, Wynne, deliberately pulled the trigger.

8 Immediately after being shot, Naurozi collapsed face forward and you, Wynne, took vials of GHB from him and ran off (Charge 6).[6] You spoke briefly to your girlfriend and told her the shooting was an accident. You disposed of the gun nearby and hid in a shed. You, Fiscalini, jumped in your car and drove away.

9 Stephanie Christopher called 000. Police attended. With the assistance of a police dog, police located you, Wynne, in the shed. You were taken into custody. You were substance affected and told police you had used a large amount of drugs which you had stolen. You spent the night in hospital and the next day made a no comment police interview. You, Fiscalini, handed yourself into police on 12 May and in your recorded interview made partial admissions to involvement in the armed robbery of Naurozi. You said the gun was yours and that you had stolen it from a friend. You did not name Wynne as the shooter.

10 An autopsy conducted on Naurozi revealed that he had suffered severe facial and skull injuries associated with a single close-range gunshot wound that entered the left cheek and travelled across the face, exiting the right cheek.

11 Police analysis of the gun revealed that it could be discharged by means other than applying pressure to the trigger. It was deemed an unsafe firearm.

12 Mr Naurozi's father, mother, two sisters and brother[7] provided victim impact statements. His father describes his pride at the hard worker and "gentle loveable boy" his son was. He feels as though his pain will go on forever. Mr Naurozi's mother says she has developed physical health issues (such as high blood pressure and headaches) due to the stress of losing her son. She gets little sleep and speaks of wanting to commit suicide. She writes: "Whilst I appreciate being able to make this statement, the reality is that it will not reduce the pain I feel in any way." Mr Naurozi's parents write that they are in financial distress without the support of their son and have to move from their family home. Mr Naurozi's siblings all describe their brother as a source of great emotional support and joy for them, and speak of the pain they feel following his death. His sisters speak of their children asking after their uncle and missing him greatly.

13 No sentence that I can impose will erase or even significantly ease the pain felt by Mr Naurozi's family.

14 As regards an assessment of the seriousness of your offending - which I am obliged to undertake by the High Court[8] - both incidents involved the possession and use of a loaded firearm for illicit purposes. The victims were lured to the scene of the crimes under false pretences: the armed robberies were planned. The offending was committed in company. Although the fatal discharge of the firearm was accidental, the conduct of both of you on both occasions involved a high risk to life and tragically a life was lost and a family is left bereft. I consider that each of these offences are upper range examples of offending of their kind. Your counsel did not dispute that assessment.

15 Denunciation, just punishment, general and specific deterrence and the protection of the community must all figure in the formulation of your sentences.

16 But whilst the prosecution rightly submitted that constructive murder is not necessarily less serious than intentional murder,[9] it is important to bear in mind that it is not alleged that you, Wynne, deliberately discharged the fatal shot.

17 I turn to a consideration of your personal histories and circumstances, beginning with you, Fiscalini.

18 Two reports on you by psychologist Gina Cidoni, one dated 26 March 2020 and the other dated 20 July 2021, provided helpful background material as well indicating that you have an intellectual disability (IQ 60) and a number of disorders, including PTSD.

19 You were born on 28 October 2000, making you 19 at the time of the offences and 21 now.

20 Your parents were both teenagers in the care of the state[10] when you were born. You are their only child.

21 Your mother has four children from four different fathers.

22 You lived with your mother until you were seven, when you were removed from her care. In Ms Cidoni's first report, she says this:

He was ... removed due to concerns about his welfare, exposure to inappropriate sexualised and violent behaviours, parental substance abuse, transience and lack of stability, that were not being appropriately addressed by his mother. There were also learning difficulties and problematic behaviours.

23 You were placed with a paternal relative for three years.[11]

24 Your mother successfully brought legal proceeding to have you returned to her care. You again lived mainly with your mother from the age of 10 until you were about 18, when you moved into supported accommodation and lived there until you were incarcerated.

25 Your father has maintained a relationship with you over the years. You have both been in jail together at times. Sadly, he is addicted to drugs, like you.

26 You were about 11 when you began using alcohol and drugs. The drugs you used from this early age included GHB and methamphetamines. According to Ms Cidoni's first report, you used GHB every second day.

27 When you were about 12, you were diagnosed with a Post-Traumatic Stress Disorder and Attention Deficit Hyperactive Disorder. You were prescribed Ritalin.

28 In her second report Ms Cidoni says this about your mental health:

He presents with very compromised mental health with Major Depressive Disorder, Generalised Anxiety Disorder, and PTSD according to the Diagnostic and Statistical Manual for Mental Disorders 5. His symptoms are also indicative of Borderline Personality reflecting unstable identity and mood states and adult ADHD. He also qualifies for a diagnosis of Substance Use Disorder that is presently in enforced remission.

29 When you were 13, you had the first of many appearances in the Children's Court for offending. You breached multiple Children's Court Orders. I will say more about your criminal antecedents a little later.

30 Your formal education and work history is very limited. You completed Grade 6, not attempting secondary school. You have worked in a radiator repair shop and in the sheet metal industry.

31 You were in an intimate relationship for about 12 months and have a son from that relationship. He was born in late 2020. You have seen him twice, according to your counsel. Hopefully the fact that you have a son will motivate you to rehabilitate yourself. Stay off the drugs. If you can do that, you could make a positive difference to your son's life.

32 As mentioned you had multiple appearances in the Children's Court beginning in 2013, many for driving and dishonesty offences, but including offences such as armed robbery, affray, recklessly causing injury, unlawful assault, carrying a controlled weapon, reckless conduct endangering life and reckless conduct endangering serious injury.

33 Over the years, sentences imposed by the Children's Court included Probation and Youth Supervision Orders, which you repeatedly breached, and detention in a Youth Residential Centre (2015) and a Youth Justice Centre (2017, 2018). The longest detention order imposed on you was 12 months in 2018.

34 In December 2019, you had your first appearance in the adult jurisdiction, namely Melbourne Magistrates' Court, receiving an aggregate sentence of imprisonment of 46 days for more driving and dishonesty offences.

35 On 31 March 2020, at Ringwood Magistrates' Court, you were sentenced to 33 days of imprisonment, mainly for dishonesty and drug offences, but also for possessing a prohibited weapon.

36 Regrettably, those two stints in adult jail - close in time to the current offences - failed to deter you from further offending.

37 You are currently serving a much more substantial sentence of imprisonment (five years and 10 months with a non-parole period of three years and six months)[12] imposed by Judge Gwynn of the County Court on 8 October 2021[13] in respect of offending on 19 February 2020, namely, being a prohibited person in possession of firearm, handling stolen goods, aggravated burglary, common law assault, committing an indictable offence whilst on bail and two charges of discharging a firearm at premises recklessly. These offences related to three incidents on the same day during which various persons were menaced. The offences were committed in company; you did not physically possess or discharge the firearm, but the fact that you were a party to such offending only a few months before the current offending is very concerning, especially as you were interviewed for the February offences in March 2020.

38 I will need to fix a new non-parole period as a result of Judge Gwynn's sentence.[14] Also, in applying the totality principle, I will bear in mind McHugh J's words in Postiglione v R that "a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."[15]

39 I note that you were on bail at the time of your current offending, which is a circumstance of aggravation.

40 Later today you are to appear at a plea hearing at Ringwood Magistrates' Court for two car thefts and an attempted car theft. The sentence to be imposed on you by the learned Magistrate is a matter in his or her discretion but, if I may say so, a disposition that would not add to your time in custody would seem appropriate.

41 Having regard to your antecedents, and the current offending, I am sorry to say that your prospects of rehabilitation seem to be poor. But I hope you prove me wrong. Because you are still young, and have a motive to rehabilitate, namely your son, there is still reason to hope that you can make something positive of your life, for his benefit and yours.

42 I find that the following circumstances should mitigate your sentence:

• Your plea of guilty;
• Your severely deprived childhood;
• Your intellectual disability and disorders (Verdins principles 1, 3-5);
• Your youth; and
• The increased hardship of prison due to COVID-19 measures.

43 Regarding your plea of guilty, as mentioned it was made at the first reasonable opportunity and its utilitarian value entitles you to a substantial discount, especially in a time of pandemic. The Court of Appeal said this in Worboyes v R:

We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.[16]

44 Regarding your severely deprived childhood, I note that the prosecution, heeding what the High Court said in Bugmy v The Queen,[17] said this in their written submissions:

[I]t is accepted that his moral culpability for his conduct can be moderated on account of the profound and significant disadvantage experienced in his formative years.

45 Regarding your mental impairments, I infer from Cidoni's findings regarding your intellectual disability and disorders that your moral culpability is diminished (Verdins 1), that general and specific deterrence should be moderated (Verdins 3 & 4) and that imprisonment is likely be harder for you than the normal prisoner (Verdins 5). However, contrary to the view I expressed at your plea hearing, I stop short of finding that there is a serious risk of prison having a significant adverse effect on your mental health (Verdins 6); if prison curtails your access and resort to illicit drugs, it may significantly improve your mental health.

46 I will now turn to your co-offender's personal history and circumstances.

47 In that regard, Wynne, I have drawn upon the report by psychologist Dr Mathew Barth tendered on your behalf, numerous character references, as well as your counsel's submissions.

48 You were born on the 16 March 1998, making you 22 at the time of your offending and 23 now.

49 Your parents separated before you were born. To your knowledge, you have never met your father. Your mother struggled financially as a single parent. She also had cancer, from which thankfully she recovered.

50 Your mother remarried when you were three, but that volatile relationship did not last. You recall her second husband often being verbally abusive, yelling at your mother.

51 Your mother married again when you were 11. Her third husband had two children from a previous relationship and your mother had a son to him who is now 11 or 12 years old. Your relationship with your stepfather was initially positive but it deteriorated in your teens, especially over your drug use.

52 Dr Barth, who diagnosed you with an antisocial personality disorder, opines that:

Perhaps due to the instability of his childhood years (despite his mother's best efforts) and the lack of a stable father figure, Mr Wynne's personality and behavioural adjustment has been very problematic. He is yet to make the transition to adult maturity and adopts an egocentric approach to life issues. He has failed to develop a pro-social direction in life and this has culminated in his significant propensity to gravitate towards antisocial peers and the development of anti-authoritarian views.

53 You began using cannabis when you were about 13 and graduated to ice and GHB when you were about 16. You told Dr Barth that these drugs came to dominate your life and that you were heavily intoxicated from these drugs when you committed the current offences. You also became addicted to Xanax and benzodiazepines and would supplement your drug use with heavy binge drinking. You told Dr Barth that you used buprenorphine in custody but have ceased such use. You are currently on a methadone program. Dr Barth diagnosed you with a severe Stimulant Use Disorder (in remission assuming you are abstaining from illicit drugs in prison).

54 Backtracking, you left school at the end of Year 9 and home when you were 16.

55 Between 2016 and 2017, you participated in two drug rehabilitation programs[18] and in January 2018 you commenced a roof tiling apprenticeship, but when your employers business went under in September 2019 in the third year of your apprenticeship, so did you, falling back into heavy drug use. Regrettably, you did not complete the apprenticeship.

56 You've had a number of long term intimate relationships, at least two of which were marred by drug abuse. You met your last partner Melissa Middleton through mutual drug use.

57 Your criminal antecedents are comparatively limited, but you have a number of priors for possessing weapons and drugs.

58 In December 2016 when you were 18, the Ringwood Magistrates' Court recorded your first finding of guilt, for threatening to destroy or damage property.

59 In 2017, you had two court appearances in the Ringwood Magistrates' Court. The latter was for speeding offences, but in May you were placed on a Community Corrections Order (CCO) for 10 offences which included contravening a family violence intervention order, unlawful assault, threatening to inflict serious injury, possession of methylamphetamine and two counts of possessing a controlled weapon without excuse. It seems you successfully completed this CCO.

60 In 2018, you again had two appearances at Ringwood Magistrates' Court. One involved the imposition of a fine for possessing amphetamine.

61 On 16 March 2020, on appeal from the Magistrates' Court, the County Court upheld your appeal against a sentence of 12 months' imprisonment and instead imposed a combined sentence of three months' imprisonment (41 days' pre-sentence detention was declared) and a CCO for 12 months for drug, dishonesty and driving offences and an offence of possessing a prohibited weapon without exemption. Just six days after you completed the prison component of that combined sentence, and whilst you were on the CCO, you committed the current offences.

62 The fact that your current offending was committed whilst you were on a CCO is a circumstance of aggravation.

63 Based on your limited criminal antecedents, your youth and the fact that you successfully completed a CCO imposed in May 2017, it might at first blush be thought that one could be more optimistic about your prospects of rehabilitation than Fiscalini's, but Dr Barth's assessment that you are at high risk of violently reoffending indicates otherwise.

64 Dr Barth says this at [46] of his report regarding the risk of you reoffending:

An assessment of Mr Wynne's risk of violent recidivism indicated the presence of several significant criminogenic factors. In particular, his antisocial personality traits, his significant substance abuse issues, his history of engaging with negative peers and his propensity to resort to aggressive behaviour as a means to achieving his personal and material goals. Further to this, Mr Wynne lacks insight into his behaviour, his coping skills are limited and he has re-offended during periods of community supervision.

65 Accordingly I take the same view of your prospects of rehabilitation, as I did with Fiscalini, but as you are a young man, there is reason to hope, especially as you appear to have a supportive family, judging from the character references tendered on your behalf which I will now briefly summarise.

66 Character references were provided by your mother, three aunts, an uncle, two cousins and a former employer and friend. These references describe a loving and supportive family who view you as a good and kind person, whose drug use changed your behaviour and caused you to act in a way that is out of character. The references speak of a family-oriented boy and young man who was active in community sport and the church before emotional turmoil led to his addiction. A number of the references refer to the positive impact of your participation in drug rehabilitation in 2017, noting that you became "the real Blake" after completing the programs. It is clear your family hope for a similar turnaround once you are released from prison. Do not disappoint them. If you can get off drugs and stay off drugs, you could turn your life around, even whilst in custody.

67 In summary, I find that the following considerations should mitigate your sentence:

• Your plea of guilty;
• Your difficult childhood;
• Your youth; and
• The increased hardship of prison due to COVID-19 measures.

68 Regarding remorse, your counsel submitted in writing that you are deeply remorseful and relied on what you had told Dr Barth. When this submission was challenged by the prosecution based on intercepted remarks made by you in an Arunta call, your counsel did not press the matter, sensibly. But you are entitled to a substantial discount for your plea of guilt, based on its utilitarian value, a discount which is amplified in this time of pandemic.

71 On Charge 1 - being a prohibited person in possession of a firearm - two years' imprisonment. I order that three months of this sentence is cumulative on the base sentence for Charge 6.

72 On Charge 2 - the armed robbery of Steven Beeton - four years and six months' imprisonment. I order that one year of this sentence is cumulative on the base sentence.

73 On Charge 3 - the attempted armed robbery of Jacob Prior - four years' imprisonment. I order that nine months of this sentence is cumulative on the base sentence.

74 On Charge 6 - the armed robbery of Abdul Hakim Naurozi - five years' imprisonment. This is the base sentence.

75 Having regard to my orders for cumulation in respect of Charges 1, 2 and 3, the total effective sentence (TES) is seven years' imprisonment.

76 I order that my TES is to be served concurrently with the TES you are presently undergoing.[19] You have approximately four years to run on the TES imposed by Judge Gwynn. My order for concurrency means that my sentence will add approximately three years to the length of your incarceration.

77 I will also set a new non-parole period of five years and six months' imprisonment in respect of Judge Gywnn's TES and my TES. This means that I have effectively added an extra two years to the period during which you are ineligible for parole.

78 There is no declaration of pre-sentence detention even though you have been in custody since 12 May 2020 because that time on remand was taken into account by Judge Gwynn when she sentenced you on 8 October 2021.

79 But for your plea of guilty I would have imposed a TES of 10 years' imprisonment and a new non-parole period of eight years and six months' imprisonment.[20]

80 I turn to you now Wynne and I note that the disparity[21] between the individual sentences I will impose on you and the individual sentences I have imposed on Fiscalini for the same offences reflect the fact that, unlike Fiscalini, you cannot call in aid the sentencing principles in Bugmy and Verdins.

82 On Charge 2 - the armed robbery of Steven Beeton - six years' imprisonment. I order that one year and nine months of this sentence is cumulative on the base sentence for Charge 5.

83 On Charge 3 - the attempted armed robbery of Jacob Prior - five years and six months' imprisonment. I order that one year of this sentence is cumulative on the base sentence.

84 On Charge 4 - being a prohibited person in possession of a firearm - three years' imprisonment. I order that three months of this sentence is cumulative on the base sentence.

85 On Charge 5 - constructive murder - 16 years' imprisonment. This is the base sentence. I note that it is less than the standard sentence of 25 years, but having regard to the fact that it is not alleged that you deliberately discharged the firearm[22] and the circumstances of mitigation referred to above, I consider 16 years is an appropriate sentence for this constructive murder.

86 The total effective sentence is 19 years' imprisonment.

87 I set a non-parole period of 14 years' imprisonment.

88 I declare pre-sentence detention of 645 days not including today.

89 But for your plea of guilty I would have sentenced you to a TES of 22 years' imprisonment with a non-parole period of 17 years.[23]

90 Finally, I make the unopposed forfeiture and disposal orders sought by the prosecution.

[1] Sentencing Act 1991 (Vic) ss 5A & 5B; Brown v R [2019] VSCA 286; (2019) 59 VR 462.

[2] Fiscalini - prohibited person in possession of a firearm.

[3] Both - armed robbery of Beeton and attempted armed robbery of Prior.

[4] Wynne - prohibited person in possession of a firearm.

[5] Wynne - constructive murder pursuant to s 3A(1) of the Crimes Act 1958.

[6] Fiscalini - armed robbery. Wynne was not charged with this armed robbery, presumably because this armed robbery was the foundational offence for the constructive murder charge.

[7] He is one of three brothers, two of whom are now deceased.

[8] R v Kilic [2016] HCA 48; [2016] 259 CLR 256, 266 [19].

[9] Perry v R [2016] VSCA 152; (2016) 50 VR 686.

[10] Your mother was subject to a Custody to Secretary Order and your father was subject to a Guardianship to Secretary Order.

[11] Cidoni says it was an aunt, but your counsel in written submission said it was your grandmother.

[12] Judge Gwynn made a pre-sentence detention declaration of 514 days.

[13] [2021] VCC 1523.

[14] Sentencing Act 1991 (Vic), s 14.

[15] Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 308.

[16] Worboyes v The Queen [2021] VSCA 169 [35].

[17] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[18] Dr Barth at [23] says you were an outpatient, but your counsel at [22] to [23] of his written submissions says you were an inpatient.

[19] Sentencing Act 1991 (Vic), s 16 (3C).

[20] Sentencing Act 1991 (Vic), s 6AAA.

[21] Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 309.

[22] Whilst the prosecution rightly submitted that constructive murder is not necessarily less serious than intentional murder (Perry v R [2016] VSCA 152; (2016) 50 VR 686), the prosecution's concession that you fall to be sentenced for an accidental discharge of the firearm makes a significant difference in this case.

[23] Sentencing Act 1991 (Vic), s 6AAA.