DPP v Doodt [2021] VCC 1584

4 The summary correctly sets out the correct maximum penalties.**

5 Mr McKenry appeared to prosecute on the plea and relied upon a written summary of prosecution opening that was dated 12 October 2021. Your Counsel, Mr Lindner, told me that that it was an agreed summary. It was marked as Exhibit A on the plea. Of course, I was more than familiar with the factual setting as I had presided over a trial relating to allegations that you went on to intentionally cause serious injury to a man named Harrison McGovern or in the alternative, that you did so recklessly. That related to a shooting later on, on the same morning, at Grovedale on Torquay Road.

6 You have been acquitted of those charges, relying as you did on self-defence. That shooting was with a gun you possessed and should not have, hence the prohibited person charge specifies Grovedale.

7 I see no need to set out the full sentencing facts in my reasons. I sentence pursuant to that agreed summary. In a nutshell, you were angry at a young man named Harrison McGovern. He had slept with your girlfriend Amber Mayhew in mid-April 2019 whilst you had been in prison. He wasn't the only person to do that it would seem.

8 You learnt of that in May 2019 and felt strong anger towards him. You were trying to communicate with him and on social media, you had called him a 'dog'. He had responded by blocking you. On 6 July 2019, he contacted you asking you why you were making threats to shoot him. You said that you wanted to meet to discuss why he had slept with Ms Mayhew.

9 The summary then sets out the texts. You were providing a deadline for the meeting. You had no business making any demands of him, much less setting any deadline for any meeting. One of his texts responding to your communications spelt out his dismay that you were threatening to go to his house. He put you off until he had finished up at work.

10 In fact, he went out that night with some friends and that group returned to

Mr McGovern's Marshall property where he lived with his mother. He and his friends went to his bedroom, which as we know, was in the converted garage. Mr McGovern's mother Paula Jenkins was sleeping in her bedroom.

11 In the early hours of the morning at around 4:10am, you paid Mr McGovern a visit. You drove to his house and you discharged a .22 round through the garage door. Your counsel tells me that this was with a homemade firearm. As I have said, that garage served as Mr McGovern's bedroom, and the round struck a guest in the elbow.

12 Fortunately for you, that man, Cameron Pamvouxoglou was not seriously injured or worse, but he did require hospital treatment and that is referred to in the opening, see paragraph [20].

13 As I have said, you were on bail and a community corrections order at the time. As a result of the supervision condition of that community corrections order, and for that matter, the prison term which had been combined with it back in 2015, you were a prohibited person under the Firearms Act 1996.

14 You had no business possessing any firearm on this day, much less discharging one into residential premises in the way that you did. This act of discharging a gun into a home was serious criminal conduct. In fact, as you know, it was the starting point for the later confrontation, one where ultimately Mr McGovern was shot by you.

15 You must get the full benefit of that acquittal, but it just demonstrates how easily the use of a firearm can lead to escalation, as it did here. The prohibited person charge relates to your possession of the firearm at that later setting out on Torquay Road.

16 You were arrested on 8 July 2019 and have been in custody since. The summary sets out some of the chronology. Until September of this year, you were denying any involvement in the offending that I am dealing with. The defence response from 2 February of this year made that clear. Presence was not admitted, you denied being the shooter and it was claimed that there was no evidence to support the assertion that you were the shooter.

17 Mr Lindner came into the matter, I believe in September. On 9 September, you were arraigned on this charge and pleaded not guilty to it. You did however on that occasion, plead guilty to the alternative charge which was on the trial indictment, which was a charge of conduct endangering serious injury. On that same day you also pleaded guilty to the prohibited person charge.

18 I severed off the prohibited person charge for a plea. So, you were by then obviously admitting to being present and to firing the weapon. You subsequently decided to plead guilty to the principal charge, being Charge 1 before me, and a plea indictment was then filed containing that charge and the prohibited person charge to which you had previously pleaded guilty. You were arraigned and pleaded guilty.

19 We then ran the trial relating to the later shooting and you were acquitted on Tuesday of this week and that left this plea waiting in the wings. The plea was conducted on Wednesday of this week. So much then for my short summary of the summary. That is all it is. I will sentence pursuant to the more detailed agreed statement.

20 I will be saying a lot about you and matters relating to you and your prospects of rehabilitation and matters of mitigation. But this is not all about you. This is about the serious crime that you have committed upon others, and by that, I am referring to Charge 1.

21 There was obvious impact here, as you know. You heard an impact statement read aloud. But one would hardly need an impact statement to know that there was impact, as there are statements in the depositions from people who were in that garage, including the young man who was shot in the arm. Mr McGovern was there. It was his room. There was a young woman, who prefers, as I understand it, not to be named, who was also there and I saw her give evidence. So did you. This was a frightening event.

22 There is also that recent victim impact statement from the owner of the premises, Paula Jenkins. It was read aloud by the prosecutor. No issue was taken with any aspect of the impact statement. She, as you know, was the mother of Harrison McGovern. This was her house. Well, you have discharged a live round into her son's bedroom in the early hours of this morning.

23 Of course, I must put aside the impact arising from the later shooting of her son. That would obviously have been a very distressing time in her life. She has done her level best to deal with the impact arising from this first incident, being the shooting into the garage. As you know, it has had a lasting impact upon her. You have violated her safe place. It has had impact upon her feelings of safety and security in her own home. Even now, she is hypervigilant. A popping balloon or a car backfiring distresses her. So too, hearing a car pulling up in the early hours.

24 She had lived at these premises with her three children, one of them was school aged, and her feelings for that house really altered from that day in July 2019. Her house was then a crime scene. She had an understandable concern and worry for the fact of there being a guest in her house who was shot there. Ahe feels, rightly or wrongly, that neighbours lost respect for her for these things being brought into that quiet street.

25 She has left that house but she continues to suffer impact. Now, I am not able to reach conclusions about the medical conditions spoken of being linked to this crime, but it is very clear to me, as I believe it is to you if I am to accept your apology that has been issued, that your crime has caused and continues to cause significant impact. I take that into account, as I am required to.

26 Mr Lindner conducted the plea on your behalf and he relied upon a written plea outline that he wrote over the 12th and 13th October. He placed before me some details of your family and personal background, including your educational and employment history and your problematic issues with drugs. He made some submissions as to the relative gravity of the offending and your reasons for having a firearm.

27 In his oral submissions, he made it clear that you believed that Mr McGovern's bedroom was in the garage and that you believed that it was occupied, with him in his bed at the time you shot into the garage in the early hours of that morning. I clarified that, as the written submission seemed to suggest otherwise.

Mr Lindner explicitly abandoned the suggestion that was in the written document that you did not know the garage was the bedroom or that it was occupied.

28 He submitted that you had some prospects of rehabilitation. He called your mother to give evidence on your behalf. He placed before me an old psychiatric report, an alcohol and drug clinician's report, a number of clean drug screens and a letter offering you employment.

29 He relied upon the following matters in mitigation:

• Your guilty plea in the midst of the global pandemic;
• The presence of some remorse;
• The delay and your efforts in custody; and
• The impacts of the COVID-19 pandemic upon your custodial experience.

30 He was not arguing that you could or should be immediately released. He conceded the inevitability of a prison sentence with some cumulation between the charges but argued that there should be a head sentence with a longer than usual period on parole. I interpose, there is no such thing as a 'usual'

31 He was conceding the inevitability of a sentence exceeding your existing pre-sentence detention and spoke of the desirability of providing for your possible release on parole and in a setting where you had a sizeable sentence hanging over your head. I bear in mind that you have already spent over two years three months by way of pre-sentence detention, and that there has to be a gap of at least six months between a head sentence and a non-parole period.

32 Whilst Mr Lindner spoke of the usefulness of parole and the rationale for having this long gap, whether you are paroled or not is beyond my control. That will be exclusively in the hands of the Adult Parole Board.

33 Mr McKenry, on behalf of the Director of Public Prosecutions made submissions as to the relative gravity of the offending. He challenged the suggestion of the offending being on the spur of the moment. He argued that it was a serious example of the offence of discharging a weapon, with a gun discharged into residential premises in the early hours. Not just into residential premises but into what was believed to be an occupied bedroom and with the round actually striking a guest. All of this producing significant impact.

34 The prosecution argued that weight had to be given to both general and specific deterrence, punishment and protection of the community and that your prospects of rehabilitation would be viewed as guarded at best, given your lack of response previously. The prosecution was calling for a head sentence and a non-parole period, which your counsel had conceded to be the only available outcome in any event.

35 I will turn now only briefly to your background, and that is because I do not have any reason to doubt the details of your background. Those details are to be found in the old expert report of Dr Cidoni, in the evidence of your mother, and in the written outline of Mr Lindner.

36 Very briefly then, you are 27 years of age, born in June 1994. You are the youngest of three boys. Your parents separated about 10 years ago. Your father owned a motorbike shop and your mother has worked in aged care as a personal care assistant and now as a manager of a facility. Your older brothers have prospered. You look on with some envy at their jobs and houses and their settled existences. You see how much they have and hence how much you have lost over the years. I am told that there is no family history of criminal conduct at all.

37 You had significant enough issues as a child such as to have counsellors engaged during primary and secondary school. There are some suggestions of ADHD but that was never diagnosed. A later diagnosis appears to be one of oppositional defiance disorder. You do not function at a particularly high level as that report makes plain.

38 You completed schooling, obtaining your Year 12 VCAL and then worked at a car dealership as a washer and then as a detailer. You lost your way. Your mother made that plain. There was a breakdown of a relationship, you resorted to drugs and the rest is, as they say, history. Drugs and drug use and mixing with a cohort of drug users, has very much altered the trajectory of your life, as it so often does.

39 Your mother is still very supportive of you. She told me that you had no history of violence in the past, be it at school or on the sporting field. She said that you look up to your brothers and really want what they have. She believes that you have been appropriately medicated once you were received into prison, and she believes you are a very different person when you do not use drugs.

40 She says that you have matured since July 2019 and that you are in a much better place than you were back then. You have goals and believe you actually do have a future. You have emerged from what she described as the 'hopeless doldrums' of 2019. She says that you talk now about wanting to have children and a job and a home. All the things that you see your brothers having. You say that you wish to leave drugs behind you. Well, it is easy to say those things when in custody. No doubt it is true, but you also said these sorts of things on the last occasion you appeared at court in 2015.

41 She says that you believe that you have a future. She also said you had some remorse, though curiously she had no discussions with you at all about what on earth you had a firearm for, and why on earth you were carrying one. But she says there is a very big change in the way you now appear if compared to that man back in July 2019. She says, then you had no or little hope, very little by way of self-esteem, no goals, no hope, and she says it is very different now.

42 You have a relatively brief criminal history. I am not going to set it all out. The first two entries are of little if any relevance to my task. The December 2015 appearance in the County Court is quite different. It is of some relevance that you were on a community correction order and that took effect after you had served a sizeable period in custody. That was for very serious driving offences committed back in 2015.

43 You were only 20 then, but it is a bit surprising that you would ever have used drugs again, having wrought the dreadful damage you did upon a totally innocent five-month-old baby when you drove a car into that child's house whilst under the influence. See Judge Allen's sentencing remarks [2015] VCC 1978.

44 It is a bit disturbing that you committed these offences whilst on such an order, but you did. As I have said though, it is not a long history and your present time in custody is the longest time you have served by far. I was told about the later court appearance in December 2020 for the earlier September 2018 and April 2019 offending. See paragraph [3] of the defence outline.

45 I want you to understand that you do not fall to be sentenced a second time by me for any of that past offending. You have served the sentences which were imposed, but I do have to make judgments as to your prospects of rehabilitation and the need to deter you and to protect the community from you.

46 You were on bail at the time of this offending, as well as the community corrections order I have mentioned. I was told by your counsel that there is nothing outstanding other than the community corrections order breach, which is listed before Judge Allen on 11 November. The fact remains though, you have chosen to go and buy a gun and have used it whilst on bail and in the currency of the community corrections order you were on. It was serious offending by a man on a substantial court order.

47 I take into account your background as far as I am able to, but there really is nothing in it reducing your culpability here. Your counsel was not relying on any of the principles from the well-known case of Verdins[1] (or Brown[2]) and nor does the material suggest to me that those principles have any application here at all.

48 Still I take into account that background. It was certainly not a smooth background as you passed through school. I turn then to consider the other matters that have been raised on your behalf by Mr Lindner.

49 The first of those matters is your guilty plea. It is a late plea but is still of value. There has been some saving but the jury in the trial I conducted heard evidence of this event. Witnesses were called but not all of them. There were some sensible agreements as to the facts. There is still a utilitarian benefit flowing to you. It was of course your right to run the trial on the other matter and necessarily the full context and the lead into the second incident went before them. That was unavoidable, whether you pleaded guilty or not guilty to this first incident.

50 So, you have facilitated the course of justice in relation to these matters, albeit quite late in the day. Your guilty plea is worthy of some extra weight for the reasons set out in the decision of Worboyes[3]. So, I take these various matters into account in mitigation.

51 I turn then to the submission made as to remorse. There is not that much evidence of remorse here. I sense your decision to plead to these matters was a pragmatic one. It was a sensible one. It was forensically advantageous to do so. Given the obvious connection between the two incidents, a denial of this conduct would have very much "queered your pitch" on the more serious later incident. Blind Freddy would have known that there was a connection between the two incidents.

52 I accept that the case changed once the ballistic report came into your legal teams possession in April 2021. But you have known throughout that you were present and the person who discharged this weapon into the garage. Your mother spoke of your regret, but you cannot have been expressing much regret or feeling it at least, as long as you denied your presence at the scene of this shooting, as you did up until around September of this year.

53 So, I am not satisfied that there is much by way of remorse here. I am prepared to treat your plea as evidencing some modest remorse. I take that into account in your favour.

54 I turn now to your prospects of rehabilitation. I am making judgements on all the material before me and it is never easy. This is not some precise art. I note that Judge Allen regarded it as significant in 2015 that you had, as he put it, 'strong, stable family support and a circle of friend such as to help you complete the process of rehabilitation'[4]. He had earlier mentioned the fact that there had been detoxification and counselling engaged in. In paragraph [32], he spoke of the expert material before him supporting the view that you had good prospects of rehabilitation.

55 That related to the report that is before me. Yet here you are again. There you were in 2019 buying and using a gun whilst on the community corrections order that Judge Allen had placed you on and doing that having seen the inside of a prison.

56 Drug use has been very problematic over the years. That is obvious. You have been doing your best to address those longstanding drug issues whilst on remand, as the Caraniche report placed before me makes clear. There are a number of clean drug screens and I accept there are others that you were not able to produce to me, given your movement away from your usual prison where you have been housed.

57 If you revert to drug use upon your release as you have done previously, you'll have almost no prospects of rehabilitation. You have been making efforts in custody. You have also been working for about the last year. You are appropriately medicated and it would seem from your mother's evidence, in a far more positive mindset.

58 You have family support, but you always have actually. You have a home to go to and the likelihood of a job. Well, that is a lot more than many prisoners ever have available. I hope you can leave drugs and crime behind you and maybe just maybe, you are at stage where you really can. Your criminal history certainly does not suggest to me that you are intractably antisocial or violent. As I have said, it is a short history. Against that of course, I have this serious offending. It was hardly spur of the moment.

59 You were on bail and a community corrections order. You were a prohibited person. However, having examined all the materials including the evidence from your mother, I believe you are actually reclaimable. Abstinence from drugs is really the only way forward for you, and it seems on the evidence that you have matured over the last couple of years.

60 Why wouldn't you have? You have seen all the things that have been lost to you and you hope to live a different life. Why would you not hope for some change in your circumstances? Why would you want to revert to the condition you were in back in July 2019? What sort of future is that, for anyone?

61 The test will come for you upon your release as it did on the last occasion back in late 2017. As you know, you failed that test badly. But you have got a few more years under your belt, and at least you have been doing things in custody to try to maximise your prospects. As I have said, if you continue to use drugs upon your release, you will have virtually no prospects of rehabilitation into the future.

62 I take a less pessimistic view than that urged upon me by the prosecution here. Your prospects are far from hopeless, and I believe they may have been bolstered by what has been the 'circuit breaker' of being remanded in custody for over two years.

63 I believe currently that you have quite realistic prospects of rehabilitation and they will rise significantly if you are prepared to put in the work to remain drug free. It is not too late for you to change the path of your life but if you do not do it upon your ultimate release, well when will you?

64 Your counsel relied upon the impact of the COVID-19 pandemic upon your experience in custody. I accept his submissions in that regard.

65 I do accept that the COVID-19 virus and the response to it by those running the prisons has increased your prison burden. Prison has been a more stressful environment in the time that you have been there, to this point. You, unlike some, have been in custody throughout the COVID-19 pandemic crisis. Social distancing has not been easy.

66 No doubt there has been worry about catching the virus in such a setting where, unlike someone in the community, there is just no level of autonomy at all. There have been some lockdowns and as I understand it, you are currently in quarantine as a result of moving prisons for the trial. You have also had significant limitations to visiting and to the full range of courses from time to time.

67 As I have said, the time that you have been in custody has coincided with the entirety of the COVID-19 crisis. It has not been a good time to be locked up and I take that into account. I also take into account that it seems likely that these restrictions will continue into the future, at least in the short term. That no doubt will also produce worry and uncertainty. I cannot speculate about how long restrictions on visiting prisoners will be employed.

68 I prompted your counsel to address me on the issue of delay. It seemed to me to at least have some relevance here, when I looked at the chronology that had been place before me. COVID-19 has produced a significant enough delay here, with the committal being put off, and difficulty getting the matter before a court. No doubt it has also been an unpleasant delay for all of the witnesses, including people who were not witnesses, Ms Jenkins for instance. There are no benefits to any person having a case waiting in the wings.

69 These two charges were linked up with the other charges and it is true that you always had the option of pleading guilty to this first incident. None the less, you have been in a state of suspense for a long time. You have been on remand for well over two years with no certainty at all as to any release date. You have had the other more serious offences pending and it must have been stressful with all of those matters waiting in the wings.

70 You really could not have had any idea in what year, or even perhaps in which decade, you might be released until all these matters had been finalised. I am sure that would be an unpleasant state of suspense to live in. In that period, to your credit, you have made decent efforts in custody doing courses, remaining drug free and working. So, I take these matters into account.

71 I must pay regard to the nature and gravity of the offences before the court and this was undoubtedly serious offending. That was explicitly conceded by

Mr Lindner. He conceded that the discharge firearm offence was a serious example of that offence. He was right, it was. You were prohibited from possessing any firearm at all. You were on bail. You were also on a community correction order from this court.

72 Guns in the hands of the wrong people has always been of real concern in these courts. As to the prohibited person charge, the principles dealing with that offence are well established. Your counsel concedes the seriousness of that offence as well. Cases of Best[5], as well as the cases of Powell[6] and Simpson[7] refer to an earlier case of Berichon[8], another decision of the Court of Appeal. That case of Berichon, has some references to the sentences available for the higher category or level of offending.

73 These various cases describe the two broad categories of offending, as well as sentencing practices and range for each band. The first being the least serious band, where it is not open to conclude that the possession of the firearm was associated with some ongoing criminal purpose, and the more serious second category where the evidence enables that conclusion of possession for a criminal activity or specific criminal purpose. For example, in the context of criminal activity to provide security, or as a means of enforcement.

74 No one could lawfully possess the style of firearm that you possessed. No one. It was homemade. Your counsel placed before me your account of how and why you had the weapon. There is not too much mitigation to be had from your account. It really raises more questions than answers actually. There was some support from your mother as to your suffering an assault and one that led you to going to hospital. Why though were you confronting that other man who had slept with Ms Mayhew? Hardly surprisingly, that confrontation ended badly, it would seem for that other man and then for you. Why being assaulted in the way described would then lead to the need for you to obtain a firearm, is not at all clear to me.

75 Mr Lindner suggests it was also a need arising out of having enemies in the drug scene. Hence, you bought an operational firearm for protection from criminal associates. It is obvious then, that the prohibited persons charge falls comfortably into the higher category of offending referred to in these cases to which I have referred. This offence is a very long way removed from the low order examples of the offending that are referred to in those cases.

76 You discharged the firearm into premises with reckless disregard. That was very serious conduct. As I have said, these were residential premises. It was the early hours of the morning. You believed Mr McGovern was in the room that you fired into. The notion that you had in mind that he would be lying down on his bed and hence, not in the line of fire and struck, is frankly absurd when regard it had to use of a homemade weapon fired by a man angry enough to fire it at 4:00 am into a house.

77 It was an act of confrontation. It was part of your determination to vent or to confront Mr McGovern over his liaison with Ms Mayhew. It so easily could have led to far more serious consequences for the person it struck in that room and hence for you. As it is, the round struck an occupant. Very luckily for you,

Mr Pamvouxoglou has not been seriously injured or worse. Plainly though, this was not spur of the moment activity. The lead up to it precludes that finding.

78 I accept it had nothing like the lead in as disclosed in the case of Aitkison[9], but there was nothing spontaneous or spur of the moment in the true sense of those words when I examine your conduct. You had decided to leave your home. You should not have. You decided to drive to another person's home. You should not have. You have taken a gun, one that you should not have had, and you have done so to drive home a message, or to confront as you had been mentioning for some hours. It was not truly spontaneous at all.

79 Guns in the wrong hands are always potentially dangerous. A gun has a way of escalating things. This case demonstrates that about as clearly as any I have ever seen. Remove a gun from the equation and we would not be here. None of us. You would not be sitting where you are sitting. Mr McGovern's mother would not be sitting in court. Your mother would not be sitting in court. You would not be in the dock. Mr Pamvouxoglou would not have been struck by a bullet. Mr McGovern would not have been shot. You should not have had any gun or the confidence or bravado that having a gun may have granted you.

80 The discharge of the weapon into Mr McGovern's bedroom was a matter of confrontation. How would he not respond to that? It was designed to send a message or to provoke a response or maybe even both. Why would he not be absolutely furious with you for doing that? Well he was, and he responded. No doubt if he could go back in time, he would change the way he responded. But this could have ended far more disastrously for both of you actually.

81 Though of course you were acquitted of the serious injury charges relating to the later incident and of course you get the full benefit of that acquittal, the fact is you had a gun at that scene. One you should never have had. You were a prohibited person. That is the basis of the prohibited person charge. Possession at Grovedale.

82 There is an obvious connection between the offending in that you were a prohibited person possessing a firearm and you had used that same firearm to discharge into the premises, all on the same morning. The timeframe therefore is tight enough and though they are separate offences with differing elements and protecting against differing vices, I have to be astute to avoid doubly punishing you.

83 I have to consider a number of purposes of sentencing. I do pay regard to your prospects of rehabilitation. As I have said, those prospects are I believe, realistic. Perhaps being tucked away in prison for over two years has been of some use in that regard.

84 But there are other sentencing purposes which I must also give weight to. I must punish you and I must do that justly and proportionately. Punishment is obviously an important consideration here.

85 I must also denounce your conduct. That is also important. I must pay appropriate weight to deterrence, both general and specific. There is the need for this court to seek to deter you and others from this style of offending in the future. Specific deterrence is of some importance here, that is deterring you, and that is because you were on bail and on a community corrections order at the time. Community protection is also of some importance given the nature of this conduct.

86 Mr Lindner reminded the court that your history before the courts discloses no similar matters, and no matters of planned violence at all, and he took me to your mother's evidence in that respect as well. Well, I do not ignore any of those submissions. No doubt, if you had prior convictions for being a prohibited person in possession of a firearm or discharge of a firearm, well greater weight would be devoted to community protection and deterring you.

87 General deterrence is a significant sentencing purpose in this sort of case. That is the need to deter other offenders. We are sick of guns being in the wrong hands. It is a serious crime to possess a weapon such as the one that you did whilst being prohibited. It is a more serious crime still to fire a weapon into residential premises. It is an act with significant enough risks and your reckless disregard arose out of anger and a desire to confront and send a message.

88 Well, I must send a message. The court must convey the message that sizeable sentences will be imposed on those who choose to commit crimes such as yours. I have to have regard to the maximum penalties in play, as well as the impact of your crimes. Well, that impact in relation to Charge 1 has been significant.

89 I do pay regard to current sentencing practices. It is not a single controlling factor. I have looked at the relevant portions of the Sentencing Advisory Council online data for examples of sentences imposed on the prohibited person charge. I am well familiar with sentencing practices for that crime. There are no Judicial College of Victoria sentencing snapshot documents for either of these crimes. In fact there are not even online statistics for the discharge firearm offence. It is a relatively new offence.

90 I have looked at the Judicial College of Victoria online sentencing manual, there are no examples of sentences imposed for the discharge weapon offence. It seems likely to me that conduct endangering either death or serious injury has been preferred in the past. I have looked at the case I was referred to, that of Aitkinson. It is altogether more serious in terms of the lead in and context, and in fact involved the aggravated discharge firearm at premises offence, with a higher maximum penalty of 20 years.

91 There were multiple occasions in that case where a firearm was discharged, in the course of some pretty determined and extravagant stalking conduct. However, I note that a number of the shots went either into a garage that was not occupied or into a car or guttering. One round did go into the lounge room, through an adjacent wall and into an occupied bedroom but no one was struck.

92 There is virtually no information in the case of Atkinson as to subjective factors such as his background, the matters in mitigation or his prior criminal history. What happened in that case does not dictate what must happen in this case by way of sentence.

93 The fact is other cases are not precedents and there is no such thing as one correct sentence. Statistics have inherent limitations. I have to pass an appropriate sentence in your case. I have taken into account all the submissions made both by your counsel and by the prosecutor.

94 Prison is correctly, a disposition of last resort. There is no doubt at all in my mind that your conduct is deserving of a substantial term of imprisonment. That much is conceded by your counsel. The question for me then is, how substantial?

95 You have over two years and three months by way of pre-sentence detention. That is a sizeable period, and more so when regard is had to the increased burden arising in the COVID-19 setting, which has prevailed throughout that period. It is accepted though by your counsel that any sentence imposed by this court must extend that stay and make provision for your possible release on parole.

96 I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. I have to also avoid double punishment, as I have mentioned. Totality of sentence is an important consideration here, given the relationship between the charges. In fact, I believe given the relationship between the offences that it is both open and appropriate to pass an aggregate prison sentence here.

97 I raised that in the course of the plea. Neither party took any issue with such a course being adopted here. The alternative of course, was passing a base sentence upon Charge 1, a sentence upon Charge 2 ordering a measure of cumulation between the two. But doing all that would arrive at that same end destination, that I will shortly announce to you.

98 Now there are some ancillary orders that are sought here and they are all consented to. And I have signed those orders. The first of them is a forfeiture order under the provisions of the Firearms Act 1996 seeking forfeiture of the various items set out in the schedule. There is no opposition to the making of the order, indeed it is consented to and I am satisfied that the order is justified and I will make that order pursuant to s151 of the Firearms Act. The property referred to is to be forfeited to the Minister. I also make a forfeiture order under the Confiscation Act 1997 in relation to the car and the key.

99 That order is sought pursuant to s32(1) of the Confiscation Act. Again, there is consent to the making of that order. I am satisfied the order is appropriate to make and I have signed that order. That property referred to in the schedule will be forfeited to the Minister. Finally, there is a disposal order that is sought under the provisions of s78 of the Confiscation Act. Again it is consented to. A large list of items is set out in the schedule.

100 I am satisfied that it is appropriate to make that order and pursuant to s78 of the Confiscation Act, I forfeit that property referred to in the schedule to the State and I direct that it be handled and dealt with in the manner contemplated by my signed order. So, I have made those three orders.

103 All right. So this brings me then to the end phase of the sentencing process. So I wonder if you would stand up please and I'll pass sentence upon you.

104 On Charge 1 and Charge 2, so they are charges of discharging a firearm at premises, and prohibited possession of a firearm, I convict and sentence you to an aggregate period of 48 months' or 4 years' imprisonment. I am going to specify that aggregate term as the base sentence for reasons that will now become clear.

105 On the summary matter, that is of committing those offences on bail, you are convicted and sentenced to 7 days' imprisonment and that 7-day period will be served concurrently with that base sentence. So that produces a total effective sentence of 48 months' or 4 years' imprisonment.

106 Now given the dimensions of that sentence, other than in a handful of very rare settings set out in s11 of the Sentencing Act 1991, none of which arise here, I am required by law to fix a non-parole period. I am not allowed to speculate as to whether you will be released on parole or not. That will be entirely in the hands of the Adult Parole Board. I suppose it's between them and you really. I will provide my reasons to them, and my reasons may assist them in their task. My reasons may also assist Judge Allen when he comes to consider the action to be taken on the breach of the community corrections order listed in November of this year. I fix a non-parole period here as I must.

107 I direct that you serve a period of 30 months or two and a half years before becoming eligible for release on parole.

Section 18

108 You have spent already the period of, it's 830 days by my reckoning is that right, 830?

111 You have spent already a period of 830 days in custody by way of pre-sentence detention, and that period is declared as having already been served under this sentence.

112 I'll let you have a seat at this stage if you would. Grab a seat again.

113 Now, upon hearing that non-parole period, you are probably doing some calculations in your mind and perhaps thinking that it is not too long until you could apply for parole. You would be right.

114 It is also easily possible that there may be some allowance, perhaps even a decent allowance, made for emergency management days declared in your favour. I do not know and cannot know if you will receive them or not, and so I do not and I cannot take that sort of matter into account. I suppose you will know what, if anything, is coming your way. Prisoners tend to know these things. I mention it in passing as it may even be that you are able to apply for parole almost immediately.

115 This is, on any view of it, a critical time for you Mr Doodt. You are growing older. Life is really passing you by.

116 Whenever you do emerge from prison, it will be after serving the longest sentence you have ever served. If you reoffend in the future and come back to a court, you really should expect the courts will pay less and less regard to your prospects of rehabilitation. Probably far less weight than I am giving them today.

117 How many times can your mother stand up and say 'This time it will be different'? Well, I suppose most mothers' live in hope and maybe she can do that repeatedly, whatever you do, but how often can a court have regard to that sort of sentiment?

118 So, what I encourage you to do is to seize your opportunity. Whenever you are released from prison, what you need to do is to seek out such supports as are available to you, to try to leave drugs and crime and prisons behind you. It will take real work by you. There will be challenges along the way, I am sure of that. When released back into the community you will be far freer to make the wrong choices, as you have in the past.

119 You really will need to distance yourself from many of your past associates and probably from many new ones that you have made in prison. If you mix with people who use drugs, it will very significantly increase your chances of relapsing and winding up back before a court.

120 Your life stalled very badly a handful of years ago. You have wasted many years with well over four years spent in prison. You cannot alter those past events, they are in the past. You cannot reclaim those years that have been lost. The court hopes that you can succeed and leave that pretty miserable former existence described by your mother well and truly in your wake. But you are the only person who has got any control over what lies ahead in your future. Only you can write that ending here. I cannot. Your mother cannot. You can. It really is not too late for you to change the trajectory of your life. But the choice is ultimately yours.

Section 6AAA

121 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for six years. I would have fixed a non-parole period of four and a half years. That statement is also to be entered into the records of the court. Let me just see if there are any other matters?

122 HIS HONOUR: Any other matters from your perspective Mr McKenry?

125 MR LINDNER: No, nothing in relation to the sentence, the only other remark or comment I'd make Your Honour is as Your Honour would anticipate,

Your Honour's remarks are irrelevant to - are relevant to Judge Allen's considerations forthcoming. And I'm just wondering if Your Honour would be able to provide a revised or unrevised - - -

126 HIS HONOUR: I'm heading back up to town today, I'll revise them once they're sent back from VGRS and then they will be provided to you, but they'll also be posted on AustLII as well, but yes, we'll get them to each of you.

127 MR LINDNER: Excellent, yes, that's the only matter Your Honour.

128 HIS HONOUR: Yes, no problem, all right. Well that completes the matter then. You'll go and have a chat to your client Mr Lindner, yes Your Honour.

130 HIS HONOUR: Yes, all right. So, Mr Lindner will come down and have a chat to you, but that completes the matter then Mr Doodt, and I think that completes also the - does that complete the circuit are there any other orders I need to make?

132 HIS HONOUR: No other matters. Look, thank you again each of you for your involvement and for your involvement throughout Mr McKenry. Well, as I say that completes the circuit then, so shortly I'll adjourn the court to 10.30 on Monday. That completes the matter then Mr Doodt, so

Mr Lindner will come down and have a chat to you. So Mr Doodt can be removed please.

[1] [2007] VSCA 102; 16 VR 269; 169 A Crim R 581

[2] Brown v The Queen [2020] VSCA 212

[3] Worboyes v The Queen [2021] VSCA 169

[4] DPP v Doodt [2015] VCC 1978 at para [33](e)

[5] Best v The Queen [2015] VSCA 151

[6] Powell v The Queen [2015] VSCA 93

[7] Simpson v The Queen [2015] VSCA 210

[8] Berichon v The Queen [2013] VSCA 319

[9] Aitkenson v The Queen [2021] VSCA 127