DPP v Bourke [2020] VSC 130

2 The offences on the indictment took place outside neighbouring premises at 27 Hague Road, Wodonga, not far from where you lived.

3 At the time of the events before the Court, you resided in a house at 31 Hague Road in a suburban street in Wodonga. You owned the house jointly with your former partner, Jessie Thompson. You and Jessie Thompson had separated from one another some months previously. The breakdown of that relationship was partly caused by methylamphetamine abuse that the pair of you were engaging in at that time.

4 Your immediate next door neighbour was Larissa Simms at 29 Hague Road. There was a wooden fence dividing your property from her residence. There was a block of units next door to Larissa Simms at 27 Hague Road and the entrance to those units was the scene of the crime in this case.

5 Dusty Lyons was an acquaintance of yours, but you had fallen out with him because you believed he was badmouthing you. You believed he was spreading falsehoods that you had been in a sexual relationship with a younger family friend. You had a dispute with Lyons over the issue previously and had ceased associating with him.

6 Dusty Lyons had commenced a relationship with Larissa Simms and this led to Lyons staying overnight with Simms on the 14 November 2018.

7 On the morning of 15 November 2018, you saw Dusty Lyons walking out of Simms' premises towards a taxi at around midday. You yelled abuse at Lyons at that time.

8 Later that day Lyons returned to 29 Hague Road. Simms also returned to her home at around 5.00pm.

9 Lyons went out to meet Simms when she arrived home, and you saw Lyons again at that stage. You and Lyons threw insults at one another and Lyons offered to fight you. You submit that the Court should find, on the balance of probabilities, that at that time, prior to you going to your house and getting a firearm, Lyons had a knife.

10 You went into your house and grabbed a firearm. Meanwhile, Lyons went inside the house at 29 Hague Road with Larissa Simms and stood behind the locked security door watching you.

11 Lyons initially thought that you were armed with a shortened rifle, but then saw you standing near the fence dividing the two residences holding what appeared to him to be a different firearm. At that time, you were leaning over the fence yelling abuse at him and Lyons was also taunting you and making verbal threats. Meanwhile, he was recording events on his phone. Lyons said to you, 'Who needs a gun?'

12 Lyons decided to avoid you by leaving through the back door of 29 Hague Road and climbing over the fence into the driveway of the units at 27 Hague Road. As he walked up the driveway of 27 Hague Road, you were walking down the street from your house towards him, and you continued the confrontation near the entrance to 27 Hague Road. You were still armed with a firearm, and the pair of you were facing close to one another and traded further insults and threats. Again, you would have the Court find that Lyons had a knife in his hand at that time, although self-defence was not relied upon by you. I will deal with your submission that Lyons had a knife later in my reasons.

13 Lyons went to hit you and you raised your firearm up and aimed it just over his head before pulling the trigger and discharging a live round. This caused a loud bang and a puff of smoke.

14 Fortunately, the bullet appears to have sailed over or past the head of Lyons, so that he was not seriously injured or killed. Small granules of gunshot residue landed on the forehead of Lyons and were lodged under his skin. Lyons was shocked by what had occurred, fearing that he had been shot in the head and he immediately raised his hands to check his forehead.

15 When Lyons realised he had not been shot, he began to move towards you as you backed away towards your house at 31 Hague Road. Lyons believed you motioned to cock the firearm at that point as you were retreating to your home.

16 Simms took Lyons to his mother's house in Yackandandah and she later removed numerous breadcrumb like particles of apparent gunshot residue from Lyons' forehead. At a later date, a nurse from Wodonga Hospital extracted a small number of further particles of gunshot residue from the same site and gave them to police. Expert ballistics evidence obtained by the Crown indicated that the small particles of gunshot residue that had peppered the forehead of Dusty Lyons were consistent with the discharge of a firearm from a distance of about 600 millimetres between the end of the firearm and the forehead of Lyons. This shows just how dangerous the incident was, involving as it did a serious threat to the life of Dusty Lyons. The actual cartridge casing was never located by police.

17 Timothy Sergeant, who knew both you and Lyons, was in the process of moving house from 25 Hague Road, Wodonga at the time of the incident. His partner Davina Jackson was also involved in helping move house. They were relocating to a house in Albury, New South Wales. Sergeant and Jackson witnessed part of the shooting incident. After observing that a shot had been fired and seeing Lyons driven away by Simms, Sergeant went to your house to check whether you were injured. You decided to leave the area on your motorbike and follow Sergeant and Jackson to their new residence in Albury.

18 Subsequently, you asked Sergeant to perform some tasks for you. You wanted him to go back to your house and collect some clothes and your CCTV hard drive. You were worried that the CCTV hard drive from your home security camera might have captured the incident. You also asked him to hide some bullets for you. You told Sergeant that the weapon you fired was a single shot weapon.

19 Whilst at his house in Albury, Sergeant complied with your request to hide the ammunition you gave him. He hid it under a wheelie bin. He later collected the CCTV hard drive from your house and brought it back to his house at Albury.

20 The abovementioned shooting incident is relied on by the Crown as founding the first charge of reckless conduct endangering the life of Dusty Lyons. The firearm discharged by you at the time was never recovered. However, I am prepared to accept that it was a single shot weapon. At the time you fired it, you were prohibited from possessing a firearm due to a previous appearance before the Wodonga Magistrates' Court in August 2018. Therefore, your conduct also constituted the offence in Charge 2 on the indictment of being a prohibited person in possession of a firearm.

21 You were ultimately arrested on 23 November 2018 and at that time you were carrying a backpack containing a number of different items of ammunition. Additional ammunition was found at your house at 29 Hague Road on 24 November 2018 when police attended with a search warrant. The ammunition seized by police on 23 and 24 November 2018 forms the basis for the related summary offence, which is to be taken into account pursuant to the provisions of the Criminal Procedure Act 2009.

22 Your previous criminal history is limited, but nevertheless relevant. You were dealt with at the Wodonga Magistrates' Court on 22 August 2018 for a number of matters that proceeded as a consolidated plea. There were charges relating to possession of prohibited weapons and possession of ammunition without a licence arising from offending on 2 October 2017. I was told by your counsel that those offences related to an ornamental sword, a laser pointer and a crossbow. There was also a charge relating to an imitation firearm which was said to be, in effect a toy gun, and a charge of dealing with property suspected of being proceeds of crime.

23 Other offences dealt with in the consolidated plea included trafficking methylamphetamine and possession of ecstasy and cocaine on 2 October 2017. The trafficking charge was based on possession of a trafficable quantity of methylamphetamine and I was told you were found with six grams of methylamphetamine found on the execution of a search warrant on your premises.

24 There were also firearms offences dealt with in the same consolidated plea hearing arising from offending on 3 May 2018. Those offences encompassed possession of unregistered firearms and possession of cartridge ammunition without a permit. I was told that on that occasion there was a shotgun, an air pistol and cartridge ammunition found in the ceiling of a neighbour and friend of your mother and that the items had belonged to your father, but you agreed to take responsibility for them. Your father had died, but you had knowledge of the items and their location. There was no association between the storing of those items and other criminal behaviour at that time. Two driving offences relating to 10 February 2018 were also dealt with in the consolidated plea.

25 The offences dealt with in the consolidated plea constituted your first appearance in adult court and resulted in an aggregate fine of $2000 with conviction. Also, your driving licence was suspended for 12 months. There was also an appearance in Wodonga Children's Court in 2010, but I do not regard it as relevant for present purposes.

26 Despite the significance of the matters dealt with by the Wodonga Magistrates' Court on 22 August 2018, which was less than three months before the offences before me, I take into account that you had never been in custody before your remand on the current charges.

27 I am prepared to accept on the balance of probabilities that Lyons had a knife at an earlier stage before you went and got a firearm from your house. Timothy Sergeant referred to his impression that Lyons had a knife at that time, and whilst Simms referred to Lyons grabbing a pen from the kitchen and running out the front and saying "[H]ere I am, let's go now ',[1] her suggestion of a pen seems rather implausible. She was a witness who had to be compelled to provide her evidence. Whilst Lyons also claimed to have had a pen at the earlier time I consider his credit on this issue to be questionable.

28 However, the assertion that Lyons was holding a knife when he sought to evade you by slipping away through neighbouring premises and then was confronted by you is not supported by any firm evidence. Whilst there is some logic to the prospect that if Lyons had a knife earlier, he probably still had it, no one gave evidence of seeing Lyons with a knife shortly before you discharged the firearm. In fact the evidence of those who saw him around the time the shot was fired, was that they saw him put his hands to his forehead. He was obviously not holding anything in his hands when he did that. I am therefore not satisfied on the balance of probabilities that Lyons was holding a knife when you fired the shot, but little turns on the issue in circumstances where Lyons was seeking to evade a person who was armed with a firearm. The fact is you pursued Lyons whilst carrying a firearm that was loaded with a live round.

29 I should add that I accept that you were upset that Lyons had been telling people that you were a paedophile and that you had been sleeping with a family friend and I accept that those imputations were untrue. However, the fact that you had a motive to be angry with Lyons in no way excuses your conduct in firing a loaded firearm so close to his head. You are fortunate that you are not facing an even more serious charge than that of recklessly endangering life.

Procedural history and timing of plea of guilty

30 You have been remanded in custody since the date of your arrest on 23 November 2018 and the matter has therefore been outstanding for nearly 16 months. You have spent your time on remand at the Metropolitan Remand Centre.

31 Originally, you were charged with attempted murder and that charge was a key matter in dispute that led to the case being listed for trial following a contested committal. You informed the Crown through your solicitors, soon after committal, that you would plead guilty to a lesser charge if the charges of attempted murder and recklessly endangering life did not proceed. I was told by your counsel that you offered to plead to reckless endangerment (serious injury). The ultimate plea indictment was the result of more recent negotiations between trial counsel. There was also a matter in dispute between the Crown ballistics expert, Mr Pringle, and a defence ballistics expert, Mr Lawton, that involved some further test firing being performed by Mr Pringle quite recently. The current proceedings finally resolved on 11 March 2020, which was listed for legal argument as the first day of trial.

32 In summary, although your plea was not an early plea, I take into account that there were ongoing discussions and that further expert evidence was only recently provided. As indicated in open court, I regard your plea of guilty as having substantial utilitarian value at the present time, noting the current public health concerns regarding the COVID-19 virus, which may have impacted on the practical management of a jury trial if the matter had not resolved. I note that in the interim, between you pleading guilty and this sentencing, new jury trials have had to be ceased for the time being in Victoria. Fortunately, no jury pool needed to be called in for your case.

33 The Crown submitted that the charge of conduct endangering life was a serious example of the offence with a high risk to the life of the victim due to his proximity to the discharge of the weapon. The offending was made more serious by the fact that it occurred in daylight in a residential location, at a time when members of the public were out and about in the area. Also, it was made more serious by the fact that you pursued the victim, who had sought to leave the vicinity to avoid further confrontation.

34 Regarding Charge 2, the Crown acknowledged the need to avoid double punishment by treating the discharge of the firearm as an aggravating feature of the charge of possessing a firearm whilst being a prohibited person. However, the Crown submitted that the firearms offence could be regarded as objectively more serious if the Court was prepared to accept that the possession of the firearm was associated with ongoing criminal activity, or otherwise, if the Court concluded that possession was for the purpose of criminal activity or a specific criminal purpose.[2] The Crown submitted that an adverse finding of this nature could be made regarding Charge 2, because of your prior criminal history, the ammunition found in your possession, and the fact that the firearm used in the shooting had not been acquired for a legitimate purpose.

35 It was also submitted that the objective gravity of Charge 2 had to be seen in the light of the prevalence of firearms offences[3] and that general deterrence was an important consideration for firearms offences.

36 In response to the Crown submissions regarding the objective gravity of Charge 1 and 2, your counsel Mr Gray conceded that Charge 1 was at least in the mid-range of seriousness, despite no serious injury resulting from the discharge of the firearm. Regarding the second charge, Mr Gray disputed that the Court could be satisfied that possession of the firearm was associated with ongoing criminal activity.

37 I accept the Crown's submission that this was a serious example of the offence of recklessly endangering life. The firearm was discharged in a public place close enough to the victim to result in small particles of gunshot residue landing on his forehead. Regarding Charge 2, it is significant that you were before the Court so recently for firearms offences. As part of your plea, you have admitted that you were afflicted by methylamphetamine addiction at the time of your arrest. I am not positively satisfied that your possession of the firearm that was the subject of Charge 2 was for a criminal purpose distinct from the unlawful activity the subject of the first charge or that it was associated with ongoing criminal activity (although it came to be used in a criminal manner). Nevertheless, I do consider that your methylamphetamine abuse and past criminal history, which included (as previously stated) trafficking methylamphetamine, (based on possession of a trafficable quantity) was a potentially dangerous context in which to be having a firearm as a prohibited person.

38 The Court received victim impact statements from Dusty Lyons, Timothy Sergeant and Davina Jackson. I have read the statements of each of them and take into account the fear and distress caused by your actions on 15 November 2018. Dusty Lyons experienced an event that most people would find terrifying. He continues to relive the trauma of that moment and feels that the event changed his life. Timothy Sergeant and Davina Jackson, who witnessed the incident have also felt less secure since the incident occurred.

39 You are now 27 years of age and were born and brought up in Wodonga. You are one of two sons to your parents. You have suffered significant family misfortune in that your older brother committed suicide in 2010, and your father died from liver disease in 2018.

40 You went to school in Wodonga leaving Wodonga Secondary School at the end of year 10 to work as a sandblaster. You were injured in a workplace accident and commenced a course at Wodonga TAFE obtaining permits to operate earthmoving equipment and forklifts. You then began work with a firm called Kerbline Constructions and remained working with them for six years rising to the position of second in charge in concreting. You worked up to 70 hours a week to pay off your house, having purchased a house jointly with your partner Jessie Thompson.

41 You had been in a relationship with Jessie Thompson since the age of 16 when the pair of you were at school together. You and Jessie Thompson have a son, Boston, who is aged seven. In the middle of 2018 your relationship with Jessie Thompson collapsed and she left you to deal with her own drug problem, leaving you to look after Boston.

42 At that time your own personal life was undergoing a downward spiral due to methylamphetamine abuse; you had lost your job, no longer had a motor vehicle and could not manage your financial commitments. Your son, Boston was then sent to your brother-in-law and his wife to be cared for.

43 Therefore, by the time of the offending, your partner Jessie Thompson and your son Boston were no longer living with you and I deduce that you were in a bad way due to your drug problem.

44 Jessie Thompson gave evidence on your behalf at your plea hearing and told the Court she has been off drugs and clean for two years now, having taken herself out of Wodonga to make a fresh start. She no longer associates with drug users. She works full time as a beautician. She has resumed the care and custody of Boston and has maintained contact with you whilst you have been in prison, visiting on occasions and arranging daily phone contact between you and your son. She was uncertain whether she would resume a relationship with you when you are released from prison, but indicated that regardless of whether that occurred she will be supportive of you maintaining close contact with your son because: 'Boston needs his dad.' She also gave evidence that she believes that, 'the old Jordan is back' and that although the pair of you went down a bad track, you now have a plan to get a job and do everything you can for Boston when you are released. She said you are usually a hard worker. However, if you returned to drug use she would not tolerate that.

45 Your counsel tendered a number of certificates for courses undertaken in prison[4] including education sessions relating to drugs such as ice (methylamphetamine). I was informed that you have been working steadily in the industries section of the prison and have been tasked with instructing other prisoners in the use of machinery. Whilst you have been undergoing urine screens and these have generally been clear[5] there were two exceptions that were explained by your counsel, and which appeared to be situational.

46 The records put forward regarding your behaviour in prison indicate that you have adapted to your situation on remand and have tried to use your time productively to overcome your drug problem and gain some additional skills and knowledge that will leave you better equipped for when you return to the community.

47 Your mother was present in court, along with other family friends and I received some character references[6] indicating that there will be ongoing help for you upon your release. Your former partner remains supportive, regardless of whether your de facto relationship is renewed upon your release.

48 Mr Gray submitted that you have good prospects for rehabilitation if you remain free of drugs. Ms Churchill, on behalf of the Crown, did not disagree with that submission. I accept that your prospects for rehabilitation are good. You have managed to avoid coming before an adult court until 2018, and you had been gainfully employed and paying off a mortgage on a residential home up until your descent into drug use. Your partner related to the Court her belief that after your brother's death you had not properly dealt with things and it is possible that your emotional state worsened after the death of your father coinciding with your personal life becoming more chaotic and dysfunctional. There is no real evidence of remorse before me, but when you spoke to a Community Corrections Officer you said that you wanted nothing more to do with guns as they had only got you into trouble in the past. You have not had the benefit of a treatment specific order in the past.

49 The parties referred to sentences for recklessly endangering life and prohibited person possessing a firearm which have mainly been handed down in the Victorian County Court, and some sentences considered on appeal by the Victorian Court of Appeal.[7] A Sentencing Snapshot for charge 2 was also provided. I have taken those comparative sentences into account, but note regarding the case summaries that the outcomes largely reflect the diverse factual circumstances behind each case.

50 I accept that general deterrence, denunciation, community protection, and just punishment are important considerations in this case, as in most cases that involve criminal use or carriage of firearms. I also accept the submission of the prosecutor that specific deterrence also has relevance to you given your poor response to your appearance in the Magistrates' Court in 2018.

51 I should make it very clear to you that your actions in firing a loaded firearm in a public place in close proximity to Mr Lyons were completely reprehensible. You should not have had the firearm that you took with you to the incident as you were prohibited by law from having a firearm. You showed contempt for the law in behaving as you did.

52 On the other hand you are still relatively youthful and I accept that you appear to have decided to turn your life around once you are released. Rehabilitation remains an important sentencing objective. I must also apply the principle of parsimony in s 5(3) of the Sentencing Act 1991. The Crown conceded that a combined sentence of imprisonment followed by a CCO was open in this case. For that reason, I had you assessed on Friday for your suitability to undertake a CCO and you have been found suitable to do so according to an assessment I have now received.[8]

53 In all the circumstances of this case I am persuaded that the appropriate sentence is one that combines a sentence of imprisonment with subsequent release on a Community Corrections Order. I consider that such a sentence will satisfy each of the relevant purposes of sentencing that I have referred to above. This combined sentencing disposition offers the benefit that when you return to the community you will be required to continue to make amends for your crimes by doing active community work and you will be expected to undergo therapeutic programs and drug testing to ensure you do not return to criminal offending. You will be closely supervised by Corrections Victoria for a lengthy time after your release from custody. As explained by the Court of Appeal in Boulton v the Queen[9] ('Boulton') a combined CCO and imprisonment is not a light sentencing option. It was also explained in Boulton that treatment and rehabilitation conditions are imposed for the protection of the community as well as for the benefit of the offender.[10] The CCO regime is designed to allow courts to fashion a sentencing order to address the underlying cause of the offending. In your case drug abuse is a central matter that needs to be addressed by you when you return to the community and supervision will be important to ensure you do not return to criminal associations.

54 I have decided for reasons of convenience and practicality to impose an aggregate prison sentence under s 9(1) of the Sentencing Act 1991 on Charge 1 and 2. This is because they are both founded on the same facts or form, or are part of a series of offences of the same or a similar character. The term aggregate sentence means that the Court can fix one penalty to attach to more than one charge rather than a separate penalty for each. I will impose an aggregate prison sentence to be followed by an aggregate CCO. I will impose a fine for the summary offence.

55 In considering the terms and conditions of the CCO I have had regard to s 48A of the Sentencing Act 1991.

56 Before being sentenced to a sentence which includes a CCO you will be asked whether you consent to that order. Before indicating consent you need to be aware of the consequences of contravening a CCO. The term of the CCO I propose to impose is two years. The CCO conditions I propose are [terms of CCO read out to Mr Bourke].

57 [Her Honour addresses Counsel for Mr Bourke regarding requirements of CCO].

59 On Charges 1 and 2, you are sentenced to 18 months imprisonment, to be followed by a Community Correction Order (CCO) for a period of two years beginning from the date of your release from prison.

60 Regarding the offence of possession of cartridge ammunition whilst not being the holder of a licence under the Firearms Act 1996 or a permit under s 58A, you are fined $1,000.00.

61 I declare 480 days as presentence detention already served, up to and including 16 March 2020.

62 I declare pursuant to s 6AAA of the Sentencing Act that but for your pleas of guilty I would have imposed an aggregate sentence of three years eight months with a non-parole period two years.

63 I will sign the forfeiture and disposal orders sought.

64 I note that once the CCO commences, I will be seeing you for judicial monitoring in the Melbourne Supreme Court at 9.30am on 3 August 2020. You may attend Court via video link if required. I will be expecting a good report about your progress when I hear from you on that occasion.

[1] Compulsory examination of Larissa Simms 13 June 2019 p 11.

[2] In support of that submission, reference was made to Berichon v The Queen [2013] VSCA 319.

[3] The prosecution provided the Sentencing Advisory Report on Firearms Offences and Current Sentencing Practice published May 2019.

[5] Some samples were provided in Exhibit D(C).

[7] Extracts from Cases Summaries and other data from the Victorian Sentencing Manual were out forward.

[8] CCO Assessment report dated 13 March 2020.

[9] [2014] VSCA 342.