DPP v Atkinson [2019] VCC 2135

3 The circumstances of your offending are outlined in the summary of prosecution opening (Exhibit "A"). One of your victims, Georgia Biddell, had known you for about three years at the time of offending, as you used to supply her with prescription medication. She last had contact with you for that purpose in December 2018, but was seeking to avoid contact as she was trying to end her habit of taking prescription medication. You continued to send her a large number of text messages and to call her mobile phone number. Usually she did not respond but, occasionally, she did tell you that your contact was unwelcome.

4 Charges 1 and 2 relate to stalking Ms Biddell and her boyfriend, Isaac Balcombe, over a period of some nine weeks from 4 January to 11 March 2019. The stalking took the form of persistent telephone contact with Ms Biddell, and keeping both her and Mr Balcombe under surveillance, which included attaching a GPS tracking device to Mr Balcombe's car. It also included behaviour involved in other charges to which you have pleaded guilty, namely, cutting the brake lines on Mr Balcombe's car, throwing a Molotov cocktail up the driveway of Ms Biddell's residence which caused some damage to Mr Balcombe's car, and firing shots at the residences of both Ms Biddell and Mr Balcombe.

5 The charges of stalking Ms Biddell and Mr Balcombe also include your vehicle having been sighted in the vicinity of Ms Biddell's house for 30 minutes late in the evening of 4 January 2019. However, when police attended at 12:10am on 5 January, no person was present in the vehicle. Then, between 12:06am and 7:24am on 5 January 2019, you sent Ms Biddell 80 text messages. Also on 20 January 2019 you attended Ms Biddell's house and attached a typewritten note addressed to the first name of her boyfriend. This note purported to be from "Emily", who stated she was pregnant to him and made other aspersions against his character. Later that night, when Mr Balcombe exited from Ms Biddell's address, he observed your vehicle parked a short distance away. After remaining stationary for a time, the vehicle sped off with its headlights off.

6 Your stalking behaviour also includes Mr Balcombe having observed your vehicle close by Ms Biddell's address at 9:30pm on 23 February. Further, at 5:30pm on 4 March 2019, you travelled to the street in which Mr Balcombe lived. After waiting for a while, you later returned and a nearby resident observed you sitting in your vehicle taking photos. When Mr Balcombe returned home at 7:40pm, he observed your vehicle and you drove off at speed. CCTV footage from nearby houses depicts some of this activity. Also, the evidence in relation to the GPS tracking device is that you inserted a SIM card which was in a name other than yours. This enabled the GPS tracking device to relay information to your mobile phone concerning the whereabouts of Mr Balcombe. Thirty such messages were received by your phone on 4 March 2019. Further, from 3:00am on 7 March 2019, you loitered nearby Mr Balcombe's home for approximately 30 minutes. CCTV footage from a nearby address captured your vehicle moving towards Mr Balcombe's home at 3:35am, shortly before you discharged the 2 shots constituting Charge 7.

7 On 11 March 2019 at 4:30am, your vehicle was captured on CCTV footage approaching Ms Biddell's address with the headlights off. This was some 15 minutes before the 2 shots constituting Charge 8 were fired.

8 The prosecution opening quotes text messages which Ms Biddell had sent to you on 4 January 2019 in which she expressed exasperation with you and stated that, from the outset when she had met you, she made it plain that she did not want anything more than a friendship, you should stop pressuring her because she was seeing other people, she was not attracted to you and you should leave her alone. Later that evening at approximately 8.40pm, you parked a short distance from her home and texted her stating, "I'm out the front". She responded by stating that you were a stalker, who was making her feel uncomfortable in her own home. You sent her two further messages referring to the first name of her boyfriend, or whoever it was she was seeing, stating "I wouldn't send them to me otherwise I'll stab them."

9 Charge 3, damaging a motor vehicle, comprised the following conduct: Mr Balcombe's vehicle was parked in the driveway at Ms Biddell's home. At approximately 12.10am on 5 January 2019, you attended the property, crawled under the vehicle and cut the brake lines to all four wheels. Mr Balcombe discovered the damage at approximately 5.30am when he attempted to drive to work. The car needed to be towed to a local mechanic and the damage caused by you cost $494 to repair.

10 Charge 4, attempted arson, comprised you attending Ms Biddell's address at 4:30am on 28 January 2019. You were driven there in a car belonging to one of your associates. Mr Balcombe's car was parked in the driveway. You threw a Molotov cocktail up the driveway, which caused some damage to the rear quarter panel of the car before it went out.

11 Charge 5, being a prohibited person in possession of a firearm, is an offence committed at the same time as Charge 4. It involved you having had in your possession a sawn-off shotgun at the time you attended Ms Biddell's address at 4:30am on 28 January 2019. You are a "prohibited person" within the definition of the Firearms Act because, at the time of offending, not more than 5 years had expired since you were subject to a Community Correction Order that had a supervision condition attached to it.[1]

12 Charge 6, discharging a firearm at premises whilst carrying out a serious indictable offence, namely, stalking, also occurred on 28 January 2019. After you had thrown the Molotov cocktail down the driveway of Ms Biddell's address, you fired two shots at her house. The first shot hit the guttering. The second shot entered the lounge room window, travelled through the lounge room wall, and became embedded in the wardrobe of an adjacent bedroom, which was occupied by her grandmother. Also, Ms Biddell and Mr Balcombe were both at the address at the time.

13 Charge 7 is another offence of the same nature as Charge 6. This offence occurred in the context of you having already attached a GPS tracking device to Mr Balcombe's car some time between 24 February and 4 March 2019. On 7 March 2019, at approximately 3am, you attended his residential address. There you fired two shots, one of which hit the garage roller door and the other of which hit the passenger rear panel of Mr Balcombe's car, which was parked in the driveway. Mr Balcombe and his mother were in the house at the time. His mother heard the shooting and called police, but it was not until the following morning that she discovered the bullet hole in the garage door.

14 Charge 8 is a third offence of the same nature as Charges 6 and 7. On 11 March 2019, at 4.45am, you stopped outside Ms Biddell's home and fired a shot into the garage roller door. Ms Biddell and Mr Balcombe were in the house at the time.

15 On 22 March 2019, police arrested you and executed a search warrant at your premises, where they found a .22 sawn-off rifle, black face mask, latex gloves and bottles of alcohol spray. In a safe, they found a hand written note containing Mr Balcombe's address and also an empty GPS tracker box.

16 When interviewed by police, you claimed that you had been in a relationship with Ms Biddell, but it had started to go downhill towards the start of the year. You stated that she had gone behind your back and started seeing someone else and you got a bit angry and felt used and taken for granted. You initially told police a considerable number of lies in your record of interview. The interview was suspended and you were placed in a cell. Unknown to you, two covert operatives were also placed in the cell and you revealed to them a significant amount of your offending. When the interview resumed, you made some admissions which enabled police to locate the GPS tracking device which you had placed under the rear bumper bar of Mr Balcombe's vehicle. Police also obtained a further search warrant for your address and seized two Xanax tablets which comprise Charge 9, possession of a drug of dependence. Also seized from your house were USB devices which had on them a GPS tracker user manual, documents titled Anarchist's Cookbook, Anarchy Cookbook, Home Workshop Explosive, Hazardous Substance Fact Sheet and also a Remington firearm user manual.

17 You are presently aged 26 years, having been born on 2 January 1993. You come before the Court with some criminal history:

• On 6 May 2013, you appeared at Sunshine Magistrates' Court charged with criminal damage and trespass. Without conviction the matters were adjourned to 5 May 2014. Apparently, this conduct involved you throwing a rock into a house which smashed a window and you did this because you were bored.

• On 28 November 2013, you appeared at Melbourne Magistrates' Court where you were convicted of recklessly causing serious injury and ordered to undertake a Community Correction Order for a period of 12 months. This order included conditions of supervision, assessment and treatment for drug and alcohol abuse or dependency and mental health issues, as well as undertaking other offending behaviour programs as directed. You were also ordered to undertake 150 hours of community work. Subsequently, on 20 October 2014, the Court varied the Community Correction Order by deleting the unpaid community work condition.

This prior conviction for recklessly causing serious injury related to conduct which occurred on 17 November 2012. An amended incident report from Victoria Police database by way of a LEAP summary was tendered as Exhibit "E". It appears that, on that date, you were a member of one of two groups of people who were arguing inside the Mac Hotel in High Street, Melton. All members of both groups were ejected from the hotel. You became involved in an altercation with a member of the other group outside the hotel. It developed into a fight and you used a glass bottle, which you had in your hand, to hit your victim. On striking him, the bottle broke and caused a severe laceration to your victim's right bicep. He apparently fell to the ground and suffered a seizure and he was taken by ambulance to hospital for treatment. Your counsel stated that other people in the group or groups were also using bottles during the fight.

18 In a plea on your behalf, the Court was told that you are the oldest of four siblings. Your parents separated in late 2018 and you continued to live in the family home with your father. You completed Year 10 at Stoughton College in Melton and then transferred to Harvester Technical College, where you completed VCAL in 2010. Thereafter, you commenced an electrical apprenticeship but, later, transferred to a roof plumbing apprenticeship and, later still, commenced a motor mechanic apprenticeship. You undertook this apprenticeship with Ford, commencing in 2013, and continued to be employed there for three years, but lost your employment due to failing a drug test. Thereafter, you obtained employment with Markden Auto Repair in Thornbury where you remained employed until you were arrested and remanded in custody on 22 March 2019. Your counsel stated that you have five classroom models to complete as part of your apprenticeship before qualifying as a motor mechanic.

19 At the plea hearing on 24 October 2019, a report from Dr Laura Fleming, forensic psychologist, dated 25 September 2019, was tendered as Exhibit "4". Ms Fleming had assessed you on 9 October 2019 at the request of your solicitors. She took a history of a stable upbringing in Melbourne and good memories of your childhood up until age 18, when a romantic relationship ended and you were first in trouble with police. She reported limited engagement with others outside work or family and noted that you worked as a motor mechanic for 12 hours a day on weekdays and eight hours on Saturdays. She took a history that you had commenced smoking marijuana around 16 or 17 years of age, but had stopped it about six months prior to going into custody in March this year. However, at about age 17 or 18, you began to smoke Ice and this continued right up until you were remanded in custody. You smoked Ice daily at a cost of $300 per week and, stated that, when smoking, you became erratic and did not think through your actions before completing them, however you did not believe you had ever experienced a drug-induced psychosis. You had also used prescription medication, Xanax, although it was not prescribed for you, from about age 22 or 23, up until six months prior to being remanded in custody.

20 Ms Fleming noted that, as a condition of a Community Correction Order, you saw a counsellor for drug use and anger issues on a weekly basis over 12 months. You also reported seeing a psychiatrist, as you believed you had been diagnosed with anxiety and depression after breaking up with your first girlfriend, but were not prescribed any medication.

21 You reported to Ms Fleming that you had been in a sexual relationship with Ms Biddell up until approximately one or two months prior to your arrest, and that this had involved staying at each other's houses and occasionally going out, but mostly smoking Ice together. You stated that you had felt betrayed when Ms Biddell "cheated on [you]" with Mr Balcombe. You maintained that Ms Biddell had denied that she was in a relationship with Mr Balcombe and that, when you saw them together, you "saw red". You maintained that Ms Biddell had still been talking to you and had never said that the relationship was over until you were charged. You stated that Ms Biddell continued to be in contact with you and reported that you felt threatened by messages that she allegedly sent to you that she would harm your family. You maintained that she had lied to make you "sound worse" and would attend her address after she had said something to get you angry. You stated that you would go there because you felt threatened and to make sure she was not going to carry out the threats that she had made.

22 You told Ms Fleming that you had obtained the gun at the beginning of 2019 "for no reason" and denied that you obtained it to carry out this offending. You stated that you cut the brake lines on Mr Balcombe's car "to be a nuisance", but did not think that anyone would get hurt as they would have noticed the damage as soon as they entered the car. You reported that you threw the Molotov cocktail at Mr Balcombe's car with the intention to send a warning to him to back off from Ms Biddell. You maintained that you had made the decision to do this on the spur of the moment, but had obtained the instructions as to how to make the Molotov cocktail previously. You stated that you obtained the GPS tracking device for the purpose of finding out where Mr Balcombe resided because "he wasn't getting the message at the time". You stated that your actions were "a stupid thing to do" and that they had "probably made the victims angry and scared".

23 Ms Fleming stated that, during your assessment, you presented as having normal speech and were euthymic and reactive. You were logical and coherent and she found no evidence of formal thought disorder. Nor did she assess you as experiencing symptoms of stress, anxiety or depression over the previous week. She stated that you had a substantial substance misuse disorder that would require intensive intervention for things to change in the future. She hypothesised that a diagnosis of an Amphetamine-type Substance Use Disorder was indicated. In addition, she found evidence of antisocial traits. Using the Level of Service Case Management Inventory, she assessed you as being at high risk of recidivism. Static factors which were unchangeable included your past substance abuse and previous criminal history. Dynamic factors included your substance use, attitudes towards authority, social use of time, interpersonal skills and previous ability to abide by conditions of a Community Correction Order. She considered that the support from your family, employment factors and insight into the need for future changes were protective factors.

24 Ms Fleming assessed your offending as having been precipitated by antisocial attitudes, a perceived romantic relationship with Ms Biddell, poor interpersonal skills which did not enable you to distinguish a romantic from an acquaintance friendship, and a failure to demonstrate emotional intelligence and problem-solving skills when faced with rejection. She noted that your actions were pre-planned to some degree and that, although you reported not being able to think clearly when using methamphetamine, you were able to maintain your employment, which indicated an ability to engage in rational thinking. Although you reported feeling remorseful for the crimes, she considered that this appeared to have emerged due to your situation. She considered that you indicated limited insight into the effect that your actions would have had on the victims at the time. She noted that you were currently in enforced remission from substances and had no signs or symptoms of a major mental illness. She described your current offences as "severe". She opined that, without intervention to address your attitude towards women, interpersonal skills and substance abuse, your risk of recidivism is high.

25 My concern over the gravity of this offending and the lack of any rational explanation for it, led me to adjourn the matter so that a psychiatric assessment could be obtained from Forensicare.

26 At the adjourned hearing on 12 December 2019, a psychiatric report, dated 2 December 2019, was tendered as Exhibit "G". This report was co-authored by psychiatric registrar, Dr Praveen Das and her supervisor, Dr Ria Zirgiotis, consultant psychiatrist, at the Victorian Institute of Forensic Mental Health. The report noted that you had not acquired any contact with mental health services, or health services, whilst in prison. You described your personality as loyal and trustworthy and stated that you took offence to being "wronged by people", would keep your stress "bottled up" and use illicit drugs as a means of dealing with it, and would sometimes "explode" when you were angry or upset, although this was rare. You acknowledged being upset, with thoughts of self-harm, when your first intimate relationship ended after two years, when you were 17 or 18. You continued to maintain that you had had an intimate relationship with the victim, Ms Biddell, claiming that it had been a stable relationship until the period preceding the offending, when you started suspecting that she was "cheating on [you]".

27 The report noted that you apparently received diagnoses of anxiety and depression after the break-up of your first relationship. However, you reported that the treatment that you received under a Community Correction Order in 2014 did not result in any improvement of your condition and you continued to use drugs as a coping strategy. Contrary to your history to Ms Fleming that you did not believe that you had ever experienced a drug-induced psychosis,[2] you described seeing and hearing things, which was "scary", and made you "paranoid" whilst using methamphetamine. You maintained that, after your "break-up" with Ms Biddell, you started hearing voices in your head which influenced you to do the things that you did, such as "go and get revenge" or "shoot a gun". You acknowledged that you were using methamphetamines heavily during this time, and stated that, with hindsight, you felt this experience was your "conscience", rather than an external voice. You attributed all of your offending to being a response to these voices. You stated that you wanted to scare your victims and had no intention of killing them. You described your behaviour as "very stupid and dangerous". You claimed that you had now "moved on" and that, if you were allowed to, you would apologise to the victims, but you were aware that the Intervention Orders taken out against you by both victims meant that you were not to contact them.

28 You told the authors of the psychiatric report that you had "sourced" the firearm two or three months prior to the offending because you had been feeling increasingly "paranoid" as you felt that your family were under threat from someone, so you bought the gun as a precautionary measure. I here interpolate that this history differs from the one which you gave to Ms Fleming two months previously that you obtained the gun at the beginning of 2019 "for no reason".

29 The psychiatric report noted that you showed no signs of psychomotor agitation or irritability, your speech was normal, you reported that your mood was alright and that your thought processes were linear and logical. Although you claimed to have experienced persecutory ideations in the context of methamphetamine intoxication, you denied having any such experiences in the last eight months while you have been in custody, and stated that you did not harbour thoughts of wanting to harm yourself or others. You stated that you were aware of the impact that drugs had on your mental state and acknowledged that you experienced psychotic symptoms while using them and identified that being off drugs was beneficial for you. The authors commented that you seemed to be insightful about the effect of drugs on your behaviour, mental state, and offending, and had taken steps to address this problem by engaging in drug and alcohol counselling while in custody. It was also mentioned that you are remorseful about your offending and the impact it had on your victims.

30 The report noted that transient psychotic experiences can be caused by cannabis and methamphetamine. However, it stated that your description of "voices", although suggestive of perceptual experiences one may have in a heightened emotional or anxious state complicated by stimulant use, did not have the quality of auditory hallucinations described in chronic psychotic conditions. The report concluded that you had borderline and antisocial personality traits, characterised by impulsivity, emotional dysregulation and antisocial attitudes. It considered that your offending behaviour seems to have been the result of an interplay of existing personality vulnerabilities and increased illicit drug intake, "which possibly (my emphasis) precipitated a transient psychotic state." It concluded that you currently have a stable mental state, had not made attempts to contact the victims or breach the restraining orders, and do not harbour thoughts of vengeance. The report stated that this indicates that your future risk of engaging in stalking behaviour with the victims is low, and that you planned to relocate to live with your mother, which may serve as a protective factor for the victims.

31 Mr Atkinson, whilst you claim that you had no intention of actually physically injuring Ms Biddell or Mr Balcombe, there can be no doubt about the psychological impact of your crimes upon them and also upon Mr Balcombe's mother.

32 In a Victim Impact Statement dated 18 October 2019 (Exhibit "B"), Ms Biddell speaks about the fact that she had suffered anxiety and depression for some years prior to your offending, but had finally started to see the light, commenced some part-time work and, for the first time, managed to lease a property of her own. Your offending so aggravated her anxiety that she was too frightened to leave the house. She stopped working, could not sleep, had nightmares, struggled to get through basic everyday tasks, bought a security system and camera, and her relationships with others suffered. She is still seeking help from a counsellor and psychologist to try to work through the aftermath of your offending.

33 A Victim Impact Statement from Mr Balcombe made on 18 October 2019 was tendered as Exhibit "C". Mr Balcombe stated that, prior to your offending, he was already under pressure, as his mother was awaiting surgery for a double brain aneurysm and he had commenced a new job. Your offending impacted upon his relationships with Ms Biddell and his mother, whom he felt inadequate to protect. He had to take time off work and was subsequently let go from his new job. His sleep was adversely affected and he was on high alert, as he simply did not know who was behind this offending which was taking over his life. He was compelled to stay in a hotel for some days, as his mother did not feel safe in her own home. He has been financially disadvantaged and his mother's relationship with Ms Biddell has been fractured, which has disrupted his life.

34 A Victim Impact Statement from the mother of Mr Balcombe, was made on 5 October 2019 and tendered as Exhibit "D". She described the mounting worry with the string of incidents impacting upon her son's safety and having no idea who was behind them. After the shooting at Ms Biddell's house, her blood pressure was elevated to such a dangerous level that she had to be admitted to hospital for monitoring and then referred to counselling. Her work, her sleep and mental and physical health have all been adversely affected by your offending. When she discovered that her house was under observation, her fear and anxiety was very significantly amplified. She suffered nightmares and an inability to sleep. She became so fearful that she could not drive into the garage of her home until she had repeatedly driven up and down the streets around her house. After you shot at her house in the early hours of the morning, she was no longer able to sleep in her bedroom and was consumed by a constant state of hypervigilance about the safety of her son and her own safety. As she was due to have major brain surgery, she felt that she could not have her son remain at home whilst she was in hospital and, so, booked him into a motel for several days. She forfeited a number of days of annual leave in the aftermath of the shooting. She still has her bedroom window barricaded. She feels unsafe, and has come to hate her house because of what happened in it, and the reminder of the bullet hole in the garage door, which she cannot afford to replace. She stated that she is now distrustful and suspicious of people, and reluctant to socialise. She feels that her own home is no longer a sanctuary and that she will have to sell it to get peace of mind.

35 It should be noted that, although there is no Victim Impact Statement, there was a fourth victim of your offending, namely the grandmother of Ms Biddell with whom she was living at the time of your offending. Following your crime of firing two shots at Ms Biddell's home, one of which travelled through the lounge room and became embedded in the wardrobe of the adjacent room which was occupied by Ms Biddell's grandmother, her grandmother moved out as she felt unsafe, which is an entirely understandable consequence of your offending.[3]

36 Your offending overall is very disturbing. It extended over a period of nine weeks and was particularly menacing because neither Ms Biddell nor Mr Balcombe knew who was behind these alarming incidents which were so adversely impacting upon their sense of safety and wellbeing. There has been no satisfactory explanation given to the Court as to why you would have deemed it appropriate to procure such a potentially dangerous weapon as a sawn‑off shotgun shortly prior to embarking upon this offending. I am not satisfied that you have suffered or currently suffer any psychiatric condition or mental impairment which attract the principles in the case of R v Verdins.[4] I am not satisfied that you were ever in a romantic or intimate relationship with Ms Biddell, even though you may have wished to be in such a relationship. The content of the text messages referred to in the Prosecution Opening and your own text message which was tendered as Exhibit "H", in my view, lead to only one reasonable inference and that is that you were somewhat obsessed with Ms Biddell, but it was plain that she had indicated that she did not wish to have a relationship with you. Even if you had been in a relationship with her, this could never excuse your appalling offending. As I commented during the plea hearing, stalking and violent offending against former intimate partners is unhappily all too common. Men need to realise that they do not own their partners or former partners and any offending by way of revenge or attempts to intimidate or frighten women following a relationship must be strongly denounced by courts.

37 Mr Battersby, who appeared on your behalf on the adjourned date did not seek to argue that the principles in Verdins were enlivened in your case. However, he sought to rely upon paragraph 34 of DPP v O'Neill[5] in support of the proposition that your borderline and antisocial personality traits may impact upon the Court's assessment of your moral culpability for your offending.

38 O'Neill was a case where there was psychiatric evidence to support that the offending was "not premeditated, vindictive or gratuitous, but, rather, the result of a very complex and conflicted personality structure that had developed as a result of the [offender's] confused and difficult sense of his own life."[6] In that case, the offender's complex personality matrix was found to be of central importance in explaining why, in response to humiliating remarks made to him by his victim, he exploded in a fit of rage and murdered his victim. Your case is quite distinct from the scenario in O'Neill in that, not only is the psychological or psychiatric evidence not of comparable significance and weight, but your conduct was far from being an isolated act committed in a fit of uncontrollable rage, as distinct from a protracted, premeditated and vengeful course of conduct over many weeks. In any event, your offending is complicated by your abuse of illicit drugs in circumstances where the psychiatric report states that you were aware of their impact on your mental state and behaviour.

39 On the material before me, I find that your offending is most likely a result of your pre-existing borderline and anti-social personality traits and your long-term abuse of illicit drugs, particularly Ice, although I am not satisfied on the balance of probabilities that you suffered psychotic symptoms, whether transitory or otherwise, as distinct from a heightened emotional state often associated with inappropriate stimulant use. The degree of pre-planning involved in your serious offending, to my mind, speaks against the likelihood of psychosis.

40 You embarked on a sustained campaign of surveillance, purchased a GPS tracking device for the purpose of locating Mr Balcombe, demonstrated foresight in ensuring that a SIM card other than your own was inserted in that tracking device and, also, in switching off your mobile telephone (to which signals from the device were sent) before you reached the locality where you were living so as to avoid detection. There is evidence that you had sourced material on how to make a Molotov cocktail.[7] Further, on 28 January 2019, you travelled to Ms Biddell's house in a car which was not your own, armed with a Molotov cocktail and a sawn-off shotgun. You committed your most serious offending in the early hours of the morning when people would be expected to be asleep in the safety of their own homes. The prosecution has accepted your explanation that the cutting of the brake cables to all of the wheels of Mr Balcombe's car would have been apparent when he got into the car some hours later in order to go to work. Not only was your conduct premeditated, but it was menacing and obviously occasioned very considerable inconvenience to Mr Balcombe. Further, your conduct of shooting either at the home of Ms Biddell and home or car of Mr Balcombe on three separate occasions in the early hours of the morning was deliberately designed to terrify them.

41 Ms Hamill, on behalf of the Prosecution on the first day of hearing seemed to concede that the shots which were fired into Mr Balcombe's car and into the garage at Mr Balcombe's house and Ms Biddell's house would have been unlikely to cause injury to a person, and that the two bullets discharged at Ms Biddell's house on 28 January 2019 were fired towards the guttering or roof of the house. I found this concession somewhat puzzling. It seems to me that it is more good luck than good management that someone was not injured by this reckless disregard for the safety of others at a time when they would most likely be at home or, indeed, in bed, as was the case with Ms Biddell's grandmother (Charge 6). As far as Charge 7 is concerned, Mr Balcombe's mother was awake at the time of the shooting and called Triple Zero. Indeed, you told a covert operative in the police cells that you knew someone was at home because the lights were on and you "felt the adrenalin straight away".[8] As far as Charge 8 is concerned, both Ms Biddell and Mr Balcombe were in the house at the time of the shooting. Charges 6, 7 and 8, by their very nature, involve the mental state of being reckless, specifically a reckless disregard for the safety of any person, when you used the firearm to discharge bullets. In addition, this conduct involves the aggravating feature that you did so whilst carrying out a serious indictable offence, namely, stalking.

42 Your offending overall has a high degree of objective gravity. You persisted on a course of menacing conduct calculated to terrify Ms Biddell and Mr Balcombe over nine and a half weeks, and whilst stalking them, you engaged in a variety of criminal acts which were, by their nature, inherently dangerous, such as discharging the firearm and also the attempted arson. Discharging a firearm and throwing an ignited missile in a residential area is clearly conduct which has potential for serious collateral damage.

43 In sentencing for these offences, there must be strong denunciation of your conduct and emphasis upon general deterrence. A strong message must be sent to the community through sentencing you that this sort of vindictive, menacing campaign of terror, apparently motivated by jealousy over Mr Balcombe having a relationship with someone with whom you wished to have a relationship, simply will not be tolerated. In the light of deliberate and repeated acts of criminality over a period of nine and a half weeks, there must also be emphasis upon specific deterrence.

44 Victims must feel that they will be vindicated by being protected by the law. Community protection is clearly a very relevant sentencing consideration with conduct like yours, particularly where you have possessed and fired loaded guns. Parliament passed the relevant legislation for "drive-by" shootings containing high penalties in recognition of the serious and potentially lethal consequences and dangers to the community posed by firing or carrying a loaded firearm.[9] However, I make it plain that I am very conscious that the charges involving possession and discharging of the firearm are also part and parcel of the stalking charges and I am mindful of the necessity not to impose double punishment, as well as applying the principle of totality, in order to arrive at an overall just sentence.

45 Charge 5, being a prohibited person possessing a firearm should not be treated more seriously because that firearm was discharged in association with other criminal activity. This is because that other criminal activity (Charges 1 and 2, and Charges 6, 7 and 8) will be the subject of separate punishment. It is also relevant to take into account that you have no previous criminal history relating to the illegal use of firearms which would cause the Court to consider this to be a more serious example of the charge of being a prohibited person in possession of a firearm. Although the possession charge is a distinct offence, in the context of this case, in order to avoid double punishment, I consider that only very modest cumulation is warranted in relation to Charge 5.

46 The analysis of the issue of the avoidance of double punishment is somewhat more complex in relation to the stalking offences on the one hand (Charges 1 and 2) and the discharging of the firearm offences on the other hand (Charges 6, 7 and 8). Unfortunately, I was not assisted by other than very general, perfunctory submissions on this issue from both prosecution and defence counsel. While it is clear that the conduct in twice discharging the firearm into the premises of Ms Biddell forms part of the conduct comprising the offence of Stalking (Charge 1), it is the essence of the offences of discharging a firearm (Charges 6 and 8), which, by their nature, include the aggravating factor that such discharge took place whilst carrying out stalking (a serious indictable offence). The same reasoning applies to the stalking offence of which Mr Balcombe is the victim (Charge 2) and the offence of discharging a firearm at his premises and vehicle (Charge 7). I consider that a greater degree of cumulation is warranted on the offences of discharging a firearm than is the case with Charge 5.[10]

47 In determining the cumulation for the discrete offences of criminal damage (Charge 3) and attempted arson (Charge 4), I have taken into account that they also form part of the stalking.

48 In your favour, I take into account that you pleaded guilty to the charges at the earliest possible opportunity. Your pleas of guilty have significant utilitarian benefit which entitle you to a reduction in the sentence which otherwise would have been imposed. Although your record of interview contained some fairly mild expressions that you had behaved stupidly and regretted your conduct[11], I have reservations about the extent of your remorse. Ms Fleming's report does not take the matter any further in that, when speaking to her, you acknowledged that your actions were a stupid thing to do and had "probably made the victims angry and scared". Ms Fleming considered that your remorse had only emerged due to your situation and you, in fact, had limited insight into the effect that your actions would have on the victims at the time. I place little weight upon the remarks in the recent psychiatric report from Forensicare that you are "remorseful about [your] offending and the impact it had on the victims". This comes only two months after your earlier comments to Ms Fleming and in the context of my having raised on the date of the earlier plea hearing my concerns about your lack of remorse. There was no suggestion at the hearing two months earlier that you would have liked to apologise to your victims and, indeed, Mr Battersby, who appeared for you at the adjourned hearing on 12 December 2019, appropriately posed the question as to what the content of any apology by you to your victims might be, given that you continue to maintain that you were in an intimate relationship with Ms Biddell and that she had betrayed your trust. I here note that three of the seven character references tendered as Exhibit "1" refer to your hurt and anger and feeling of betrayal over the "break-up" of your relationship preceding your offending. None of the authors of those references mention having met Ms Biddell in the context of being your romantic partner or provide any other details about the nature and extent of the relationship.

49 I do take into account that you have now had the opportunity to remain drug free for 9 months in custody and this, in combination with some programs that you have undertaken, is a start on the path to rehabilitation of a substance abuse problem spanning approximately a decade. It is relatively early days given your lengthy history of substance abuse, but, it is to your credit that you have remained drug free whilst in custody as, unfortunately, there are unscrupulous people who make illicit drugs available, even in prison. It is also to your credit that you have used your time productively in custody to undertake some other study at Box Hill Institute in workplace safety, cleaning, and hygiene practices for food and kitchen operations (Exhibit "2"). In addition, you have been gainfully employed in pallet construction and have been given responsibility for managing the tool store. This involves you handing out and receiving back all tools which prisoners use for a variety of purposes around the prison. It seems that, generally speaking, you have been well behaved in custody and have not attracted any adverse attention.

50 I am conscious that you are still a young man. You will turn 27 years of age on 2 January 2020. Although, generally speaking, youth is a factor in favour of an offender when it comes to assessing rehabilitation, I am guarded about your prospects of rehabilitation. You do have some prior offending, albeit limited, of an anti-social nature and both the psychological and psychiatric reports refer to your anti-social personality traits. Although Ms Fleming's report stated that your responses to a violence questionnaire indicated that you did not have high levels of cognition supportive of violence, she nevertheless assessed you at being at high risk of recidivism.

51 The psychiatric report from Forensicare was somewhat inadequate in that it did not address your insistence that you had been in a relationship with Ms Biddell. The authors seem to have simply accepted this at face value. Further, without any apparent analysis, the authors stated that you are aware of the impact of drugs on your mental state and accepted that you are remorseful about your offending and the impact it had on the victims. They did not provide any basis for arriving at these conclusions. In addition, the psychiatric report attributed your behaviour to both borderline and anti-social personality traits and illicit drug use, neither of which have been treated, yet it concluded that you are at low future risk of engaging in stalking behaviour with the victims. I have trouble with this conclusion, particularly in the light of the peculiarity of you continuing to maintain that you were in an intimate relationship with Ms Biddell, and that your offending against her and Mr Balcombe was so premeditated, vindictive, sustained and potentially very dangerous.

52 In all of the circumstances, I think it likely that you will need significant intervention to deal with your anti-social personality traits, your attitude towards women, interpersonal skills and substance abuse. Unfortunately, you appear to have led a relatively socially isolated existence and your unfortunate personality traits and substance abuse have not been addressed, despite the fact that, on an earlier occasion, you apparently attended weekly counselling as part of a Community-based Order over a period of 12 months. I find it difficult to assess your prospects of rehabilitation and, as I have stated, am somewhat guarded about them.

53 I note that the references tendered as Exhibit "1" describe you as a decent, loyal and respectful person for whom this offending is out of character. In earlier times, you were a volunteer basketball coach for young players and have been caring towards your younger siblings and family pets. You have a good work ethic. Some of the references mention that you were badly affected by the separation of your parents in 2018. The fact of the break-up of your parents' marriage is mentioned in both the psychological and psychiatric reports, but there is no elaboration of its impact upon you. I accept that this fact may well have caused you significant sadness and distress and take it into account as part of your personal circumstances, but you do not appear to have placed weight upon it as a contributing factor to your offending.

54 A number of family members attended your plea hearing. They are supportive of you and have visited you in custody. Although your father now lives in Darwin, your mother is willing to have you reside with her when you are released. Such support is generally a protective factor when considering an offender's rehabilitative prospects. However, I am puzzled by the fact that none of the references from any members of your family make any mention of your long-term abuse of illicit drugs or prescription medication, given that you have told both the psychologist and psychiatrists that, at the time of offending, you were smoking methamphetamine of up to 1 gram daily, which cost you up to $300 per week.

55 You are obviously a person of significant manual ability, and have a good work record as a motor mechanic. This vocational experience and a capacity for hard work, attested to by your former employer,[12] are positive factors in the picture of your future rehabilitation. I sincerely hope that the remaining study modules may be completed by you whilst in custody so that you can actually qualify as a motor mechanic.

56 In all the circumstances, there can be no appropriate sentence other than a significant term of imprisonment. As I have stated, the objective gravity of your offending is high, the explanation for it is confusing and unsatisfactory, and the mitigatory factors are of a limited nature, with the obvious exception of your early pleas of guilty.

58 On Charge 1, stalking of Ms Biddell, you are convicted and sentenced to be imprisoned for a period of 4½ years.

59 On Charge 2, stalking of Mr Balcombe, you are convicted and sentenced to be imprisoned for 4½ years.

60 On Charge 3, damaging Mr Balcombe's vehicle by cutting the brake lines, you are convicted and sentenced to be imprisoned for a period of 2 years.

61 On Charge 4, attempted arson of Mr Balcombe's motor vehicle, you are convicted and sentenced to be imprisoned for a period of 3 years.

62 On Charge 5, being a prohibited person in possession of a firearm, you are convicted and sentenced to be imprisoned for a period of 10 months.

63 On Charge 6, discharging a firearm at Ms Biddell's home whilst carrying out a serious indictable offence, namely stalking, you are convicted and sentenced to be imprisoned for a period of 4½ years.

64 On Charge 7, discharging a firearm at Mr Balcombe's premises and vehicles whilst carrying out a serious indictable offence, namely, stalking, you are convicted and sentenced to be imprisoned for a period of 4 years.

65 On Charge 8, discharging a firearm at Ms Biddell's garage on 11 March 2019 whilst carrying out a serious indictable offence, namely, stalking, you are convicted and sentenced to be imprisoned for a period of 3 ½ years.

66 On Charge 9, possession of a drug of dependence, you are convicted and discharged.

67 The base sentence is that of 54 months imposed on Charge 1. I direct that 18 months of the sentence imposed on Charge 2, 3 months of the sentence imposed on Charge 3, 3 months of the sentence imposed on Charge 4, 1 month of the sentence imposed on Charge 5, 7 months of the sentence imposed on Charge 6, 6 months of the sentence imposed on Charge 7 and 5 months of the sentence imposed on Charge 8, be served cumulatively upon the sentence imposed on Charge 1 and upon each other. The total effective sentence is, thus, 8 years and 1 months' imprisonment. I direct that you serve a period of 5 years' imprisonment before becoming eligible for parole. I declare a period of pre-sentence detention of 271 days be reckoned as time already served under the sentence imposed this day.

68 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 10 years' imprisonment with a non-parole period of 7 years.

69 On Charge 6, pursuant to s151 of the Firearms Act, I order that the .22 bolt-action sawn-off rifle (201903-M-2095-0001) be forfeited to the Minister.

70 On Charges 1, 2, 3, 4, 5, 6, 7, 8 and 9, pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the Schedule of this Order and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.

71 Pursuant to s86 of the Sentencing Act, I order on Charges 3 and 4, that you pay compensation for damage to property in the sum of $1,270.05.

[1] Firearms Act 1991 (Vic) s 3, definition of "prohibited person", para (c)(iia)

[2] Paragraph [41], page 5 of Exhibit "4"

[3] Statement of Ms [Biddell] dated 4 April 2019, part of Exhibit "J"

[4] [2007] VSCA 102; (2007) 16 VR 269

[5] [2015] VSCA 325 at [97]

[7] You had done research in relation to this (Prosecution Opening, paragraph 43(g)). Indeed, when police analysed your phone, they found documents such as the "Anarchist's Cookbook" and others relating to home workshop explosives and a hazardous substance fact sheet.

[8] Prosecution Opening, paragraph 43(d)

[9] Legislative Assembly, Second Reading speech, 21 September 2017, Hansard Book 12 of 2017, pp 2964-2965

[10] Berichon v R; Houssein v R [2013] VSCA 319; 40 VR 490

[11] Answers to Questions 111, 196/197 and 868

[12] Letter from Paul Papadopoulos, as director of Markden Auto Repair, dated 23 Septmeber 2019 (part of Exhibit "1")