DPP v Chircorp [2022] VCC 1902

2 Firstly, that on 18 February 2022 you discharged a firearm at premises with reckless disregard for safety, contrary to s 131A(1) of the Firearms Act 1996 (Vic), which carries a maximum penalty of 15 years' imprisonment.

3 Secondly, that on 19 February 2022 you possessed a drug of dependence, namely, methylamphetamine, contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which carries a maximum penalty of a fine of 30 penalty units or one year's imprisonment or both.

4 And, thirdly, that on that same day, 19 February 2022, being a non‑prohibited person, you possessed an unregistered general category handgun, contrary to s 7B(1) of the Firearms Act 1996 (Vic), which carries a maximum penalty of seven years' imprisonment or a fine of 600 penalty units or both.

5 You have also pleaded guilty to the following three summary offences and have agreed to have them determined by this court:

(a) possession of cartridge ammunition without licence or permit, contrary to s 124 of the Firearms Act 1996 (Vic);

(b) possession of a prohibited weapon without exemption, contrary to s 8B of the Control of Weapons Act 1990 (Vic); and

(c) dealing with property suspected of being the proceeds of crime, contrary to s 195 of the Crimes Act 1958 (Vic).

6 The respective maximum penalties for these three offences are 40 penalty units for the Firearms Act offence, 240 penalty units or two years' imprisonment for the Control of Weapons Act, and two years' imprisonment for dealing with property suspected of being the proceeds of crime.

7 The circumstances of your offending are set out in the agreed

Summary of Prosecution Opening dated 20 September 2022. You were born in September 1993. At the time of the offending you were 28 years old and you are now 29. Between the middle of 2021 and February 2022, you had been in a relationship with the victim, Ms Jasmine Krestevski.

8 At about 3 am on 18 February 2022 Ms Krestevski sent you a message via Snapchat telling you that she wanted to break up with you. You replied to

Ms Krestevski's message by saying, 'Watch what happens'. At about 3 pm on that same day Ms Croceski sent you a further message telling you, 'I don't want to be with you; I want to be alone'.

9 Later in the afternoon on 18 February 2022, prior to 6.30 pm, Ms Krestevski and your mother, Carol Chircop, exchanged several messages. Carol Chircop's messages advised Ms Krestevski that you were upset and were heading towards her premises, that is, Ms Krestevski's premises. Carol Chircop messages to Ms Krestevski included the following: 'Jasmine, he reckons he's coming to kill you. Please call him'. 'Jas, please be careful. He might do what his dad did.' And, thirdly, 'Okay, fuck, I'm scared he's going to do what his dad did, then take his life'. The later messages referred to your father who shot his sister-in-law several years earlier.

10 While Ms Krestevski was exchanging messages with your mother, she attempted to contact you several times but received no response from you. You drove to your home and arrived at approximately 5.56 pm. You parked in the driveway and entered the house, returning to the car two minutes later in possession of a firearm which appears to be a longarm shotgun. You placed the firearm on the front passenger seat and then began driving your vehicle to Ms Krestevski's house. At approximately 6.30 pm you called Ms Krestevski and stated, 'I'm 10 minutes away. Come outside'. Ms Krestevski refused. You then said, 'You're going to get it for playing with people's hearts'.

11 At 6.38 pm Ms Krestevski was in her bedroom located at the front of her house. You rang Ms Krestevski and when she answered you said, 'Come outside'. Ms Krestevski refused. You then drove your vehicle down Ms Krestevski's driveway. You remained in the driver's seat of the car and used your firearm to fire two shots through the passenger side window, which was open, towards Ms Krestevski's bedroom. The shots impacted the wood panelling and eaves above the window - and that is Charge 1, discharge firearm at premises with reckless disregard for the safety of any person.

12 You then reversed up the driveway and drove south along Carlisle Street. At approximately 6.40 pm Ms Krestevski called a friend, Elisa Maliokas, and told her what had just happened. Ms Maliokas then left to attend to Ms Krestevski's home. While en route to Ms Krestevski's home at approximately 7.28 pm Ms Maliokas contacted Preston police station to relay the information that she had been given. After arriving at Ms Krestevski's home Ms Maliokas saw holes in the roof awning and damage to the wood panelling, as well as a plastic item on the ground. Ms Maliokis took photographs of the damage she observed and provided them to police.

13 Police attended at the home from approximately 8 pm. The item located on the ground was identified as a plastic wad from a shotgun shell. Attending police spoke with Ms Krestevski and Ms Maliokas. Ms Krestevski nominated you as being the likely offender. That was subsequently confirmed.

14 At approximately 1 pm the following day, Saturday, 19 February 2022, you were arrested by police at your home. You house was then searched by police pursuant to s 159 of the Family Violence Protection Act 2008 (Vic). The firearm believed to have been used at Ms Krestevski's home was not located during the search or at any time afterwards.

15 Items seized from your home during the search included:

• a sawn-off rifle - and that is Charge 3, a non‑prohibited person possessing unregistered handgun;

• four rounds of mixed ammunition and one empty casing - that is transferred Summary Charge 9 possess cartridge ammunition;

• an extendable baton - transferred Summary Charge 8, possess prohibited weapon;

• two Ziploc bags containing a white crystal substance, which have subsequently been identified as methylamphetamine - Charge 2, possess drug of dependence;

• $12,000 in cash - transferred Summary Charge 10, dealing with property suspected of being proceeds of crime.

16 Following your arrest you were interviewed by police at Reservoir police station on 19 February 2022 between 4.11 pm and 4.17 pm and then again later that afternoon. You were remanded in custody where you have been since 19 February 2022.

17 I start with a discussion of the objective gravity of your offending. The most serious of your offences was firing a gun at the house where Ms Krestevski lived in the circumstances that I have just described. As the Court of Appeal has stated: 'It is an inherently serious offence to discharge a firearm into premises with a reckless disregard for the safety of others'.[1]

18 Your counsel submitted in written submissions to the court that the following matters are relevant to an assessment of the objective gravity of your offending and your moral culpability for it. Firstly, that you had no intention to hurt the victim; secondly, that the shooting was 'a moment of madness and

self‑pity and crying out for help' as you were considering shooting yourself; and, thirdly, that you 'discharged the firearm pointing upwards'.

19 In relation to the direction in which you pointed the gun, you told Ms Ferrari, a

forensic psychologist, that you 'discharged the firearm into the air'. While this is strictly correct, it is important to note that you discharged the gun through the open passenger side window of your car and the bullets entered the wood panelling and eaves above the window of Ms Krestevski's bedroom. You also told Ms Ferrari that Ms Krestevski had told you shortly before you arrived at her house that she was not home and that when you fired your gun at the house nobody was home.

20 As your counsel conceded at the hearing of your plea, this is contrary to the agreed basis upon which you are to be sentenced. The agreed summary is that you were aware that Ms Krestevski was at home at the time and I consider this to be an important aggravating feature of the offending.

21 On the question of your intent at the relevant time, while I accept that you may have considered harming yourself, I do not accept your counsel's submission that you were intending to hurt only yourself. You told Ms Krestevski before you arrived at her house that she was 'going to get it for playing with people's hearts'. Your mother told Ms Krestevski that you were coming to kill

Ms Krestevski. It is also concerning that, far from being a moment of madness, there was a degree of planning associated with your offending. You collected the gun from your house in Fraser Rise and then drove to Preston. During the drive you had time to reconsider, but did not. In light of the above considerations, I conclude that yours is a midrange example of the offence against s 131A(1) of the Firearms Act.

22 The other particularly serious offence to which you have pleaded guilty is possession of an unregistered handgun, a sawn-off rifle. It is concerning that you also had a significant quantity of ammunition. Your counsel at the plea was unable to explain why these were in your possession. You also had a small quantity of methylamphetamine in your possession and $12,000 in cash, which you accept is property suspected of being proceeds of crime. This is a significant amount of money. Once again, no explanation was proffered to the Court of why you had this.

23 Your possession of weapons, ammunition, drugs and a large quantity of cash, demonstrates that the main offence to which you have pleaded guilty is not isolated offending. Taken with your prior offending of possessing a prohibited weapon, albeit a number of years ago, it suggests to the Court that there is a need to deter you specifically from further offending and I take that into account in the sentence that I impose.

24 Turning to your personal circumstances, as stated above you were

28 years old on the date of the offending. You are now 29. Your childhood was marred by tragedy. Your parents separated when you were four and your childhood was blighted by your father's violence directed at your mother. In 1998 your father mistakenly fatally shot your aunt. His real target was your mother. In 2001 he was sentenced for that crime to 19 years' imprisonment for murder. The death of your mother's sister in such circumstances led to a serious decline in your mother's mental health. This in turn led to you experimenting with drugs, starting at the age of 14 with cannabis and then ecstasy. You also began to use methylamphetamine and shortly before the present offending nitrous oxide.

25 You left school in Year 10 and commenced a cabinetmaking

pre‑apprenticeship at Newport TAFE. Unfortunately, you did not complete that, but you did obtain work as a tiler for some time in 2011. Since then, you have worked in various jobs in the building industry before setting up your own concrete polishing business. Although this business suffered during the pandemic you are hopeful of continuing it when you are released from prison.

26 The Court received a letter of support for you dated 22 September 2022 from

Simon Fenech, general manager Fruit2Work. Mr Fenech also gave evidence explaining that Fruit2Work specialises in offering transitional work to those impacted by addiction and the justice system. He told the court that there is a job waiting for you when you are released.

27 You had a nine-year relationship with Tenisha Patrik, with whom you had a daughter, Aubrey, who was born in April 2020. That relationship ended in

February 2021 and you then commenced a relationship with the victim of this offending Ms Krestevski. You told psychologist Ms Ferrari that the relationship with Ms Krestevski was toxic and volatile, and that Ms Krestevski treated you poorly and made you feel worthless.

28 Since your imprisonment you have reconciled with Ms Patrik. The Court received a letter dated 16 September 2022 from Ms Patrik. She describes you as an amazing father to your daughter Aubrey and she describes the positive way you view the future. Ms Patrik also gave oral evidence and told the Court that you will resume living with her and your daughter when you are released.

29 The Court also received a letter dated 4 October 2022 from your mother,

Carol Chircop. Mrs Chircop speaks of the remorse and shame you feel about your offending and she states that being in prison 'has taught him a huge lesson as he is finding it very hard to cope being away from his daughter, family and friends'.

30 Turning to your mental health, for the purposes of the plea you were examined by Ms Carla Ferrari, forensic psychologist. Ms Ferrari diagnosed you as suffering from post-traumatic stress disorder, PTSD, stemming from your violent upbringing, as well as major depressive disorder and alcohol, cannabis and stimulant use disorders. Ms Ferrari opines that your untreated mental health has played an underlying role in your offending. It is not suggested on your behalf that this connection is sufficient to trigger the operation of limb 1 of the Verdins principles.[2] The evidence does not demonstrate, in my view, that any impairment from which you suffered at the time of your offending materially diminished your capacity to reason appropriately at the time of the offence concerning the wrongfulness of your offending.

31 In light of your lack of prior convictions for violent offending, Ms Ferrari assesses you as a low to moderate risk of general recidivism or reoffending.

Ms Ferrari reports that your psychological circumstances are stable, you are able to return to live with your ex-fiancé and daughter, you have full-time employment with Mr Fenech, and you have the support of your family. I take all of these matters into account. You are fortunate indeed to have that level of support, Mr Chircop. I accept Ms Ferrari's opinion that these matters are integral to your rehabilitation and recovery.

32 I note Ms Ferrari's opinion that imprisonment will weigh more heavily on you than on an individual without your mental health conditions, and this enlivens limb 5 of the Verdins principles and is a matter that I take into account in moderation of your sentence.[3] Finally, Ms Ferrari recommends that any custodial sentence should incorporate a period of support and supervision after your release to support the transition to community life. I have taken

Ms Ferrari's report into account, along with your personal circumstances more generally, in moderation of your sentence.

33 Turning to other matters in mitigation, your plea of guilty has a substantial utilitarian benefit especially in light of the ongoing court delays caused by the pandemic.[4] Your plea of guilty means that the witnesses do not have to give evidence in court, saves court time and inconvenience.

34 Your plea also demonstrates remorse. Other evidence of your remorse is contained in the letters to the Court that the Court has received from your mother, from your former fiancé and from Mr Fenech of Fruit2Work, all of whom speak of the remorse that you have expressed. I accept that you feel genuine remorse for your offending.

35 Turning to your prospects of rehabilitation, your counsel submitted to the Court that you have good prospects of rehabilitation based on the support you have in the community, the promise of a job when you are released and the positive steps you have taken while in custody to prepare for your future by completing a significant number of courses. The evidence before the Court demonstrates that you have used your time in custody productively in this regard and I note that counsel for the prosecution described your efforts in this regard as 'quite exemplary'. I also take into account your relative youth as a mitigating factor. It is significant to your prospects of rehabilitation.

36 As against this positive evidence, I must take into account what I consider to be your less than complete acceptance of your offending as detailed above in what you have said to Ms Ferrari. On balance, I consider you have reasonable prospects of rehabilitation which I will seek to promote by the sentence I impose.

37 Your counsel submitted that the time you served on remand, being 257 days not including today, and a community correction order is the appropriate disposition in this case. It is well-established that a community correction order is a sentence which can be tailored by the court to achieve a range of sentencing objectives including punishment and rehabilitation. Where punishment and deterrence are important considerations, such as in the present case, a community correction order, in combination with a term of imprisonment, may be most appropriate.[5]

38 You were assessed, at the Court's request, as being of high risk of reoffending and yet suitable for a community correction order in a report received by the Court dated 20 October 2022 from Corrections Victoria. The following conditions were recommended: community work, treatment and rehabilitation for drugs, alcohol, mental health and programs to reduce reoffending. I note that you told the assessor that you accept full responsibility for your offending and you are remorseful.

39 You were also assessed for this purpose by the Court's Mental Health Advice and Response Service, MHARS. The MHARS report, dated 24 October 2022, concludes that you have a mild mental health problem and that you will benefit from a mental health condition in any community correction order that the court may impose.

40 The Court is required by law to have regard to current sentencing practices and I was referred by the prosecution to the case of Atkinson v The Queen.

In that case the defendant received sentences of between

three years and six months and four years and six months for three offences against s 131A(2) of the Firearms Act. That sub-section creates a more serious offence than the one to which you pleaded guilty as it is concerned with discharging a firearm with reckless disregard for the safety of any person while carrying out a serious indictable offence. That offence attracts a maximum penalty of 20 years' imprisonment. The offending in that case was part of a large number of offences and one of the shots fired went through the window of a room that was occupied. I consider the present case to be a less serious incidence than that case.

41 I have also had regard to two sentences imposed under s 131A(1) in this court. In the case of DPP v Doodt[6] His Honour Judge Tinney sentenced the defendant to an aggregate of four years' imprisonment for an offence against that section and a related offence of being a prohibited person in possession of a firearm. The offences were committed while the defendant was on bail and while he was serving a community correction order. One of the bullets fired by the defendant struck and injured a person in the house. I also considered Doodt to be a more serious example of this offence.

42 The second case that I have had regard to is DPP v Henderson [2021] VCC 652 where a sentence of three years and six months was imposed in this court for a single contravention of the section. It was an aggravating feature of the offending that a bullet struck the victim. Once again, I consider that case to be a more serious example of offending than yours.

43 Finally, I note that cases such as the present one may also be prosecuted under s 22 of the Crimes Act which is concerned with reckless conduct endangering life. The maximum penalty is 10 years' imprisonment. A very recent example of such a prosecution is provided by the case of DPP v Quinn [2022] VCC 1834. There the defendant had fired twice at a moving vehicle at close range. Her Honour Judge Chambers sentenced the defendant to a two-year community correction order, noting that there were strong mitigating factors, including a history of mental illness, that met the criteria for the application of the Verdins principles, thus reducing the moral culpability of the defendant and the need for general deterrence.

44 As this brief examination of other cases reveals, a wide variety of sentences have been imposed in similar cases. Ultimately the sentence I impose on you must reflect the circumstances of your case. Other cases can be no more than a guide.

45 Turning then to sentencing considerations in your case. The principal purposes for which a sentence should be imposed in your case are deterrence, both specific and general, denunciation, community protection and rehabilitation. In relation to general deterrence, men must be deterred by the courts from reacting violently to the news that their intimate partners want to end relationships. This court hears too many of such cases.

46 It is never an easy task to balance the competing sentencing purposes. I must also apply the principle of parsimony in s 5(3) of the Sentencing Act and not impose a sentence that is more severe than that which is necessary to achieve these purposes. I have also applied the related principle of totality to ensure that the total sentence I impose is no greater than is appropriate for your overall criminality.

47 Finally, I must have regard to the impact of your offending on the victim,

Ms Krestevski. The Court has not received a victim impact statement from her, but I can infer that the ordeal must have been frightening for her. I also must impose a sentence that promotes your rehabilitation and the genuine efforts, which I accept you have made to improve yourself whilst you are in custody, and I have taken into account the numerous references the court has received in relation to your character.

48 Doing the best I can, taking into account these competing considerations, I have determined that a combination sentence of a total effective sentence of

18 months in custody, to be followed by a two-year community correction order, is the appropriate sentence in your case. Time served is to be deducted from your sentence of imprisonment.

49 Turning to the specific sentences that I impose.

50 On Charge 1, discharging a firearm at premises with reckless disregard for safety, you are convicted and sentenced to 15 months' imprisonment.

51 On Charge 2, possession of a drug of dependence, you are convicted and sentenced to imprisonment for one month.

52 On Charge 3, possession of an unregistered general category handgun, you are convicted and sentenced to six months' imprisonment.

53 On Summary Charge 9, possessing cartridge ammunition without a licence, you are convicted and sentenced to a fine of $300.

54 On Summary Charge 8, possessing a prohibited weapon without an approval, you are convicted and sentenced to a fine of $300.

55 On Summary Charge 10, dealing with property suspected of being proceeds of crime, you are convicted and sentenced to imprisonment for two months.

56 The sentence on Charge 1 is the base sentence and I order that 3 months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed upon Charge 1. The other sentences of imprisonment are to be served wholly concurrently.

57 The total effective sentence is therefore imprisonment for 18 months, fines totalling $600, with a two-year community correction order to commence immediately upon your release from prison.

58 Pursuant to s 18 of the Sentencing Act the period of 257 days that you have served on remand is to be reckoned as time served under the sentence I impose today.

59 Mr Chircop, I need to explain to you the standard terms attached to all community correction orders and I will go through those now. Listen carefully, please:

• You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.

• You must comply with any obligations or requirement prescribed by the regulations.

• You must report to and receive visits from the Secretary or their delegate during the period of the order.

• You must report to the Community Correction Centre specified in the order within two clear working days after the order comes into force, that is, within two clear working days of the date when you are released from prison.

• You must notify the Secretary or their delegate of any change of address or employment within two clear working days after the change.

• You must not leave Victoria except with the permission of the Secretary or their delegate either generally or in relation to a particular case.

• You must comply with any direction given by the Secretary or their delegate that is necessary for the Secretary or their delegate to give to ensure you comply with the order.

60 In addition to those general conditions which apply to every community correction order I impose the following special conditions to the order that I impose on you:

• Firstly, you must report to Melton Justice Centre within two working days of your release from prison.

• You must complete 175 hours of unpaid community work.

• You are to participate in treatment and rehabilitation as directed for drugs, alcohol, mental health and reoffending programs. Fifty hours of treatment and rehabilitation are to count as hours of unpaid community work.

• You are to be supervised, monitored and managed as directed by the Secretary or their delegate.

61 Mr Chircop, under the law I cannot make a community correction order unless you agree to the terms and conditions. I note that you agreed to them when you were assessed for suitability for the order. I need to ask you now, do you agree to comply with the community correction order and the terms and conditions which I have set out?

63 HIS HONOUR: You must understand, Mr Chircop, that if you contravene any of the conditions of the order, which will commence when you are released from prison, then that in itself is an offence punishable by a maximum of

three months' imprisonment. Should that occur you will be brought back before this court and it is possible that, depending upon the circumstances, the order will be cancelled and you will be ordered to serve a term of imprisonment instead.

64 I make the disposal orders and forfeiture orders that are sought, noting that they are made by consent.

65 And, finally, I indicate, pursuant to s 6AAA of the Sentencing Act, that had you pleaded not guilty to these charges, and been found guilty by a jury, the sentence that I would have imposed would have been three years' imprisonment.

[1] Atkinson v R [2021] VSCA 127, [39] ('Atkinson v The Queen').

[2] R v Verdins & Ors [2007] VSCA 102.

[3] R v Verdins & Ors [2007] VSCA 102, [32].

[4] Worboyes v The Queen [2021] VSCA 169.

[5] Boulton & Ors v The Queen [2014] VSCA 342.