DPP v Dow [2025] VCC 652

s.321m and s.75a Crimes Act 1958

s.20 Crimes Act 1958

Discharging a firearm at a premises with reckless disregard for safety

s.131A(1) Firearms Act 1996

s.18 Crimes Act 1958

s.74(1) Crimes Act 1958

s.197(1) Crimes Act 1958

s.5(1) Firearms Act 1996

1. This second indictment exclusively captures your drug offending on the date of your arrest on 27 March 2023.

s.73(1) Drugs Poisons and Controlled Substances Act 1981

30 penalty units and/or 1 year imprisonment[2]

1. Your offending can be categorised into three incidents as I said, which I will come to in a moment. But first, there are some background matters that need attention in the interests of putting your offending in proper context.
2. You were born in January 1994. At the time of offending, you were 29. You were, as one will see during the course of these sentencing remarks, previously a young man with enviable family supports, a trade behind you and real prospects. You unravelled in the most serious of ways due to a combination of poor mental health and drug abuse. Having never offended until the age of 27, your entire criminal history (including this matter) occurred within a period of a little over 12 months.
3. Make no mistake, this is serious criminality you engaged in, and I have no choice but to impose a substantial term of imprisonment on you for it.
4. The length of that sentence, and how it is arrived at, is explained in these sentencing reasons.

1. Incident one involving offences of violence, dishonesty and reckless endangerment that occurred on 22 March 2023 at a premises in Whittington. The victims, Brendan Toohey, his daughter Megan and Mr Raymond Moss, occupied the above address. You were known personally to Mr Moss. Mr Toohey and his daughter, Ms Toohey, knew of you through your association of Mr Moss.
2. Incident two involved the theft of a motor vehicle on 27 March 2023 in Port Melbourne. The victim there was Andrew Nelson, owner of a 2009 Ford Falcon and the Goodman Group, who owns the property located at Bridge Street, Port Melbourne.
3. Incident three occurred on 27 March 2023, but this time it relates to a quantity of drugs located during your arrest at the Grovedale Hotel car park.
4. I will turn now in more detail to the offending itself.

Incident 1 - 22 March 2023 - Freesia Court, Whittington

1. Relevantly, for the purposes of this offending on 22 March 2023, you were

(a) a prohibited person under the Firearms Act 1996;

(b) not the holder of a firearms licence;

(c) not authorised to carry, possess, or use cartridge ammunition;

(d) Your driver's licence was cancelled; [4]

(e) You were disqualified from driving until March 2024; [5]

(f) You were the subject of a CCO imposed only the day earlier;

(g) In a relationship with the co-accused, Ms Kate Gibson; and

(h) Using a mobile number registered to your mother

1. On 21 March 2023, Ms Gibson procured a firearm from Mr Joel Stevens. The firearm was described in a text message between Ms Gibson and Stevens as 'a chopped .22 pretty much brand new, stocks been painted black and grip wrapped in rocko tape'.
2. Ms Gibson was shown using the firearm in two videos that originated from your Snapchat account.
3. You used that firearm the following day in your spate of offending.
4. On 22 March 2023 at 6:30am you sent a text message to Gibson which read:

'Beautiful let's go see old mate I'm in form for forced payid'

1. At 5.10 pm, you sent a text message to a contact with the following:

'I'm going Round to rays now to get whatever I can I'm not leaving without a good earn or I'll put a bullet through the cunts leg. Word. I'm on a mission.'

1. At 5.30 pm, a witness captured Gibson on mobile phone camera dropping you off in Freesia Court, Whittington in a black Holden Trax.
2. You were dressed in black pants and a black jumper. You got out of the car with a backpack, pulled on a black neck gaiter and you are seen checking the backpack and your pockets.
3. You are then captured on neighbouring CCTV entering the property. Toohey, Meghan and Moss were all inside the residence at the time.
4. You walked down the driveway of the property and along the side of the house, to a glass sliding door which opened to the kitchen and dining area. Moss was sitting at the kitchen table with Toohey nearby. You opened the sliding door and demanded possession of the motorbike parked in the driveway of the property. You produced a rifle with a sawn-off black barrel from the pocket of your black hoodie. Charge 2 - Attempted armed robbery.
5. Toohey and Moss described you as having peroxide blonde hair, tattoos on your face and a cobweb tattoo in your ear.
6. Toohey initially responded by telling you that you would not be given the keys. However, after further demands by you, including menacingly holding the firearm at the sliding door, Toohey began walking through the house pretending to look for the keys.
7. When walking past Meagan to his bedroom, he told her who was inside, and to call Triple 0.
8. Toohey eventually walked out the backdoor of the house, into the backyard and walked towards the garden shed.
9. Toohey called Triple 0, relayed his address to the operator, that he was being threatened with a gun and you wanted the motorcycle. Before he could finish the call, he realised you had followed him into the backyard, walking through the house, into the laundry and out the same backdoor.
10. Toohey slipped the phone into his pocket while the call was still connected. The call captures Toohey assuring you that he is looking for the keys.
11. You then demanded of Toohey: 'Get out of the shed, what are you doing?' followed by 'Don't be fucking stupid you know where they are'. Unsatisfied it seems with simply holding a man at gunpoint, demanding his property, you decided to up the level of menace you posed by holding the firearm close to Toohey's head and threatening to blow his head off if you were not given the keys. You were a metre away from him when you did this. Charge 3 - Threat to Kill
12. Toohey, following instructions, moved back towards the house again with you following behind him.
13. He then walked through a hinged gate between the house (situated on the right) and the main shed (situated on the left). Identifying a refuge and an opportunity to stall you, he slipped into the door of the main shed, which was located just past the gate and locked the shed door behind him.
14. You banged on the main shed door and yelled 'get the fuck out'. Toohey told you to 'fuck off'. Rather than simply leave it there, though, you decided to fire shots at the main shed.
15. One of the rounds (and it is not possible to say which one) hit Toohey in the neck. Charge 6 - Recklessly causing injury
16. Toohey yelled 'You fucking dog, you shot me!'. That might have been enough to deter any further dangerous activity in others, but not you. You continued to fire into the shed. Charge 4 - Discharging a firearm at a premises with reckless disregard for safety
17. At 5:44pm, Meagan Toohey called Triple 0 and told the operator that three gunshots had been fired. Further gunshots can be heard in the background of this call, with the operator noting seven shots in total. CCTV footage from nearby properties also captures the audio of the gunshots.
18. At 5:46pm, CCTV from a neighbouring property captures you running out of the property.
19. Minutes later, police and ambulance arrived at the property. Toohey was then transported to hospital where he had to have surgery and a bullet fragment was removed from his neck.[6]
20. Police note seven areas of damage to the main shed caused by the passage of fired bullets and observed seven fired cartridge cases between the main shed and the sliding glass door of the house. The perforated damage to the shed caused by the bullet holes is at a height that would connect with a person's torso should they be standing in that shed. [7]
21. A series of CCTV camera footage images captures your flight from the property, before you are picked up by Gibson at Geelong East Men's Shed at 6:02 pm.
22. Call charge records reveal five calls between the number you were using and hers between 5:46 pm and 6:01 pm.
23. At 5:51pm you left the following voicemail for her on the phone:

Give me a call can ya, (indecipherable), the gravel road on the other side of Splashdown, the first left coming from 7-Eleven. I don't mean to be rude, but can you just hurry up? Fuck, I don't meant to put you under pressure. I shot Toohey though, and the cops pulled up down the road (indecipherable) get out of here. Oh fuck, ah well, fuck him, I shouldn't have shot the fucker.

1. At 6:14pm, you are captured on CCTV arriving at Leopold Sportsman's Club in Gibson's Holden Trax. You order drinks and sit at the pokies machines and leave after 20 minutes.
2. At 7:19pm that day, Gibson engaged in a text exchange with her phone contact Emily Jean who states -

JEAN: Tell him to save he's head on Facebook it says the suspect has tattoos and blond hair n nose ring

1. In following days, Gibson also engaged in the following text exchange with Stevens-

GIBSON: I didn't know he was going to be an absolute fucking retard with it

STEVENS: I don't fuck with ppl like that, that's how you get done

GIBSON: He was meant to sell it that night he got it

GIBSON: If I knew that was going to happen not a chance I would have helped him get anything

Incident 2- 27 March 2023 -Bridge Street, Port Melbourne

1. On that date at 4:39 am you were captured on CCTV walking around the Toyota premises at Bertie Street, Port Melbourne. You climbed over a fence into the neighbouring property located at Bridge Street, Port Melbourne.
2. You were wearing grey tracksuit pants at this time and a blue jumper, but noticeably no longer had the blonde peroxide hair.
3. Having gained access to 349 Bridge Street, you gained entry into the Ford and drove it through the front gates and down Bridge Road, causing extensive damage to both the Ford and the gates. Charge 7 - Theft of Motor vehicle and Charge 8 - Destroying property
4. Later that afternoon, the damaged Ford is captured on CCTV footage, timestamped 1:33pm, being driven into the Grovedale Hotel carpark. The Ford is then parked near a gate leading to the rear of Gibson's residence in Grovedale.
5. The fence sustained $1,980 worth of damage. It needed replacing completely.
6. There was so much damage to the Ford that it needed to be written off. Nelson received $11,000 plus a settlement from his insurer.

Incident 3 - 27 March 2023 - Grovedale Hotel car park and arrest

1. At 3:41pm, police arrived in the driveway of Gibson's residence, and they observed you in the front room through the window. You were alerted to the police car, stood up and ran towards the back of the house, through the rear gate and into the Grovedale Hotel car park, where you were met by police members of the Police's Special Operations Group.
2. You ran towards a police member, ignored directions to stop, at which time a taser was deployed with no effect. A tactical working dog was deployed, which successfully halted you. You were arrested and restrained on the ground.
3. You were taken to the hospital for treatment of injuries sustained during your arrest.
4. Police searched the Ford and found a green and black Culture Kings backpack containing items, including:

(a) A .22 Long Rifle calibre, Brno manufactured (Brno brand) rifle, Model 2,

bolt-action, repeating rifle with a partially defaced serial number. That firearm matches the description of the firearm produced and used by Gibson on 21 March 2023 and used by you the day after. Forensic testing concluded the cartridge cases recovered at the property were discharged from this weapon.

(b) You were also found in that bag with a Gerber brand hunting knife [8]

(c) Black tracksuit pants with 'Everlast' down the leg

(d) Black hooded jumper with 'Everlast' on the sleeve

(e) 'Prouds' Jewellery box containing .22 ammunition.[9]

(f) A red iPhone with the phone number ending in 839.

(g) The tracksuit pants and hooded jumper that match those that you were wearing in the CCTV footage on 22 March 2023.

1. Further, a number of items were found in your possession:

(a) Small black case with a 'Nasty' sticker on it.

(b) Glass smoking implements, including a pipe.

(c) Ziplock bags containing a white substance totalling over 3 grams including, I will come to in a moment, representing Charge 1 on the second indictment - possess drug of dependence, which included:

(i) 1 x Ziploc bag with gold handwriting which returned a TruNarc result for methamphetamine and weighed 3.38 grams; and

(ii) 1 x Ziploc bag with 'KUTA GEAR' in gold handwriting which returned a TruNarc result for methamphetamine and weighed 0.8 grams5

1. You were interviewed at the Geelong police station on 30 March 2023, where you provided a no-comment record of interview, as was your right.

1. Your offending and the relevant case history is of note.

Listed for further committal mention for resolution discussions and further disclosure material to be filed

Further committal mention Listed for committal hearing

Committal Hearing Accused committed, listed for IDH

Trial Geelong County Court Circuit vacated 11 June 24 - Mention Geelong County Court Circuit

Further plea to permit expert evidence to be called regarding Verdins

Further plea where Dr Reid and Mrs Dow gave evidence and were cross examined

1. I will return to the case history where relevant in due course.

1. No victim impact statements were furnished by any of the occupants of the house in Whittington on 22 March 2023. I can readily infer that for anyone in that house, you, being armed and menacing, was an absolutely terrifying and traumatic experience for them. I can readily infer that the man who was shot suffered both the obvious physical injury and psychological harm as a result of having his life threatened by you before being shot.

1. It was submitted by your Counsel that the offending was relatively unsophisticated and involved limited planning.
2. The co-accused Gibson, though had obtained the firearm the day before. Approximately half an hour prior to the offending, you expressed a willingness to use the firearm, albeit said in a significantly different way than that which transpired. I am not convinced that this difference in use is of much moment. It is not 'sophisticated' offending, but nor does it need to be to be effective and/or terrifying. It was certainly purposive.
3. You were motivated by the collection of $25,000 for drugs purportedly owed by Raymond Moss, Mr Toohey's housemate. You told Ms Cidoni that. You told Ms Cidoni you went to collect this money from a guy who brought drugs from you and did not pay.[10] You tried to take a motorbike instead. It did not appear to me to matter much who you took the property from to make good on any debt. To be clear, I do not sentence you for the offence of trafficking drugs. The offending, though, is by your own admission, in the furtherance of unlawful activity. For many years, courts have acknowledged and condemned the use of weapons in the enforcement or furtherance of other criminal activities and yours is a clear example why this is so.
4. You were dropped at the victim's street by Ms Gibson, in her car. It was daylight, and you walked up to the victim's driveway, slid open the unlocked glass door, and confronted Mr Toohey and Mr Moss at their kitchen bench. You later fled on foot and were picked up by Ms Gibson nearby. No stolen or hired vehicles were used.
5. The firearm was a .22 Long Rifle calibre. It was not a semi-automatic or automatic high-powered firearm, though it did seem to have a magazine.[11]
6. You created a high risk to Mr Toohey's safety as the offending evolved and escalated. You held that loaded firearm at his head and threatened to blow his head off if he did not comply with your demand for his keys.
7. You later discharged that firearm no less than seven times at the shed, piercing the shed wall.
8. Even though you did not intend to injure Mr Toohey by doing so (and I mean intentional in the relevant sense - as you pleaded guilty to offences involving recklessness), you knew he was in the shed and were apparently trying to force him out, shooting at torso height and taking intolerable and unjustifiable risks with his safety to do so. Even having been told by the victim that you shot him, you still continued to shoot.
9. Given the number of shots fired, it is extremely fortunate that Mr Toohey's injury was not more severe. The 0.5 centimetre pellet was removed from his neck later that night, and he was discharged the next day. That he was not seriously injured or killed seems nothing short of miraculous to me.
10. You had the presence of mind to flee, arrange to be picked up and later changed your appearance before sourcing a vehicle and stealing it.
11. Your criminality is accentuated by the fact that you were the subject of a community correction order (CCO) at the time of offending, having been sentenced the day before.
12. I consider the behaviour you engaged in, especially with respect to incident 1, to be serious criminality, involving serious examples of serious offences.
13. The criminality that constitutes Charges 5 and 6 in incident 2 is not of the same magnitude in any way to the events that precede it. It involves the theft of a motor vehicle for you to use, with you being rather indifferent to the significant damage you caused when taking it. It is Charge 7, the prohibited person possess firearm charge that ties back to the first episode. It is the possession of the same dangerous item used in episode 1, but rather, it is charged as possession of the firearm on the day that it was located. [12]
14. Incident 3 deals exclusively with your possession of drugs, namely methamphetamine, more than 3 grams. This obviously takes its place at the lower end of the spectrum of your offending. I cannot be satisfied in these circumstances, it was anything other than for your own prodigious drug use.

1. You were born in January 1994 and are now 31. You were raised in Ocean Grove alongside your two brothers. Your parents are small business owners, and your father, Michael, owns a construction company, and your mother, Jacqueline, runs a modelling agency. They are both now semi-retired but continue to run businesses. Your brother Taylor (28) owns a real estate agency, and your other brother Jordan (26) is a mortgage broker.

1. You are an Aboriginal man. You became aware of this aspect of your cultural heritage in early 2023 when told by your mother. Your family had not maintained a connection to culture, as Jacqueline's father (who was Koori) left when she was only two and was not involved in her upbringing. She has not had contact with her father in many years.
2. Since becoming aware of this aspect of your family history and culture, you have made contact with the Koori Liaison Officer in custody and have ongoing contact with them. You plan to learn much more about your lineage and culture when you are released.

1. You enjoyed a stable and loving family life, but struggled throughout primary school. You were targeted for being overweight, had no friends, and were bullied repeatedly, including via physical assaults. It took some time before you confided in your parents about this.
2. You have been diagnosed with Crohn's disease at the age of 15 and placed on medication. This proved difficult to manage throughout your teenage years, but it is relatively mild now.
3. Fortunately, you had positive experiences in high school and built a strong group of friends. You finished Year 10 at Saint Ignatius College in Drysdale.

1. After school, you completed a carpentry apprenticeship. While working as an apprentice, you even attended night classes at the Builders Academy Australia and obtained a Certificate 4 in Building Construction, a Certificate 4 in OH&S, and a Diploma of Building and Construction.
2. You moved to Darwin to work as a driller in the mines. You learnt on the job and stayed for two years before returning home.
3. You worked as a carpenter and held other labouring jobs. You last worked in 2022 and were then reliant on Centrelink payments. This is contrary to your history, which was up until then one where you appeared to be motivated, industrious, and a capable young man.
4. It is around this point that things truly unravelled for you. I was most assisted in the compelling evidence given on your behalf by your mother, which I will come to as it ties together issues surrounding your employment, family relationships, drug use, and mental health.

1. You have struggled with polysubstance abuse for years leading up to this offending. You started using ecstasy 'recreationally' - and I use the term advisedly - at the age of 16.
2. You started increasing use of that drug at age 25 (that is to say, five or six years ago) when you started using cocaine and speed regularly.
3. You confessed this drug use to your mother, and she helped you to attend an inpatient rehabilitation centre in Chiang Mai, Thailand, for three months. You then remained drug-free for over a year.
4. By 2020, you struggled with your mental health (which I will come to) and later started to use methamphetamine. This became your primary drug of choice, although you also used GHB.
5. Following a period on remand for a previous Magistrate's Court matter, you were granted bail to attend rehabilitation. This course that the Magistrate took was entirely reasonable given the success that you had previously enjoyed with inpatient rehabilitation.
6. On 14 November 2022, you were admitted to the Foundation 61 in Mount Duneed, where you stayed for three months.[13]
7. You returned to living with your parents in February 2023, but the success of your earlier efforts at reform was not repeated or sustained this time. You relapsed within a week. You soon became homeless, as your family were increasingly concerned about your drug use and related behaviour and had to make the heartbreaking decision to ask you to leave their family home. Your mother had something akin to a breakdown out of concern for you.
8. By the time you committed the offences before me, you were staying at different friends' homes (I take it your then girlfriend's too) and using about one gram of methamphetamine per day.
9. You attended the Magistrates' Court for the matters you received a CCO for in March of 2023, this time without the support of your parents.
10. You were not only heavily substance dependent it seems, but also mentally ill.

1. I will introduce the topic of your mental health now and return to it later.
2. You present with complex mental health issues, including previous diagnoses of Schizophrenia and Bipolar that are no doubt confounded by your continuing polysubstance abuse. I will deal with your diagnosis and the role it has to play in the offending and your reform later in these reasons, as befits the prominence that this issue took on the plea.
3. As I alluded to earlier, in 2020 (soon after the COVID pandemic started), your mental health unquestionably took a turn for the worse.
4. Your family became increasingly concerned by your reports of poor mental health, including suicidal thoughts. Your mother confirmed this in her evidence before me. Taylor (your brother) took you to The Alfred, and you were diagnosed with Bipolar and Schizophrenia.
5. What followed was your admission to the Albert Road Clinic, a private psychiatric hospital, on three occasions, 9 November - 10 December 2020, 14 - 29 May 2021, and 9 - 30 June 2021.[14]
6. During these stays, your treatment included transcranial magnetic stimulation (TMS) and electroconvulsive therapy (ECT). You were prescribed medications but they were varied during these admissions.
7. Around this time you started using methamphetamine. At first, and for understandable reasons, I was truly puzzled by this decision, but your mother Jacqui put it into context. You confided in her that you had made friends in Geelong and had started using ice. This concerned you and comforted you at the same time because you felt like you fitted in.
8. Mrs Dow describes your descent into very poor mental health and the offending as one that was sharp. Eventually you were unrecognizable to your loving family.

1. You have come to offending relatively late in life. Your first Court appearance, at the Southport Magistrate's Court in Queensland, was not until 2022 when you were 28. Soon after, at 29 years of age, you were dealt with by the Geelong Magistrate's Court. Now at 30, you have to be dealt with for offending that occurred in a most serious way.
2. The following prior matters were finalised in June 2022 at Southport. There, you were convicted and sentenced to a one month's imprisonment to be suspended for two years for three counts of obstructing police in a licenced premises whilst in a public place and adversely affected. You were convicted, sentenced to 10 months' imprisonment to be suspended for two years and ordered to pay $1,500 compensation for: serious assault of a police officer while adversely affected in a public place causing bodily harm. You were also convicted and fined $1500 for: contravene direction or requirement in a licensed premises.
3. On 21 March 2023 at Geelong Magistrate's Court you were convicted and sentenced to a CCO for 18 months for charges of: Theft -from shop; Attempt to commit indictable offence; Commit indictable offence on bail; Obtain property by deception; Attempt to obtain property by deception; Handle/receive stolen goods; Theft of a motor vehicle; Possess methamphetamine; Possess GHB; Deal with property suspected of being proceeds of crime; Possess imitation firearm without exemption/approval; and Possess ammunition without licence. An ancillary order was made on 21 March to cancel and disqualify your licence for 12 months. I seriously doubt your commitment to abide by that order, given that you were planning this serious activity before me when the ink was barely dry on the CCO.
4. You have demonstrated a willingness to re-offend shortly after receiving

non-custodial dispositions. Only nine months into your two-year suspended sentence imposed at Southport Magistrate's Court, you were sentenced at the Geelong Magistrate's Court. You then engaged in the offending before me, the day after accepting the conditions of the CCO. 5. That CCO was tailor-made to facilitate your reform and rehabilitation. You did not give it a chance, deciding instead to forge ahead with the offending before this Court on 22 March 2023, the day before you were first due to report at Geelong Corrections on 23 March 2023. I pause to note that the CCO was tailor-made to facilitate your reform and rehabilitation. You did not give it a chance, instead forging ahead with the offending before me, the day after. 6. Your prior criminal history is relevant and covers a broad spectrum of offending. You have breached every order that you have been subject to so far. It is concerning that offences relating to guns, drugs and theft are imbued through a growing criminal history that only commenced as recently as 2022. 7. You were arrested on 27 March 2023 and taken to Geelong Hospital. You remained under police guard until you were able to be interviewed three days later. 8. For completeness (noting that this is not a prior conviction), on 25 July 2023, you were sentenced in the Magistrate's Court for breaching that CCO. You were sentenced to 90 days, with 42 days reckoned as time served prior to the imposition of the CCO. 9. Therefore, in calculating the PSD for this matter, 48 days in total will be unavailable. [15]

1. Taking a moment now to describe how others see you, I refer to the references tendered on your behalf. [16] They provide confirmation that there is clearly more to you than this violent thuggery you engaged in back in March 2023.
2. You are much loved and supported by your parents and brothers. Your situation has placed tremendous strain on them. They still wrote powerful references for you. They describe your capacity for kindness, reflection and good, and lament that it is only now, once in custody, that they see you return to the way you were before life changed with drug use and criminality.
3. Other good, decent people, such as Mr Newton, Ms Tregenza and Mr Favre, for instance, all speak of your personal qualities, and your capacity to contribute to the community and the latter particularly speaks of your commitment to reform.
4. Their ongoing support of you is important in this exercise.

1. Violent theft offences are considered serious offending, as they invariably involve a terrifying experience for victims and threaten the wider community's sense of security.[17]
2. I have touched on matters I consider inform the gravity of this instant offending - they involve a degree of planning, targeting the victim for the express purpose of securing money, entering the victim's home whilst armed with a loaded weapon (whilst being prohibited from possessing same - a circumstance I stress I have not doubly punished you for, given that this is represented by a separate charge) and that item has the capacity to seriously injure or kill, and in fact brandishing that gun at a man's head whilst threatening to kill him unless he complied, as well as the ultimate actual use of the weapon in a reckless way, causing injury to that victim too. These events can be seen as part of a continuum or a serious course of criminal conduct, but of course, the charges are covered by separate charges on the indictment.
3. The attempted armed robbery has the highest maximum penalty, but it is the reckless discharge of the firearm that is the serious and grave conduct here, and it will form the base sentence. I will deal later with the interaction between the counts on the indictment and between indictments.

1. While each case must, of course, be assessed on its own facts and circumstances, other cases may be of assistance in guiding the Court where such cases bear similar features or where such cases deal with relevant sentencing principles.
2. Your offending is covered by two indictments and eight distinct offence types. Imprisonment maximums vary from 20 years to one year. Charge 1, attempted armed robbery, is a Category 2 offence, due to your possession of a firearm. Accordingly, I am required to impose a custodial sentence for this offence. Whilst no argument was advanced that anything but a custodial order was appropriate in the circumstances, the maximum penalty and additional custodial obligation serve as an important reminder of the seriousness with which Parliament views this species of offending.
3. I have familiarised myself, as best I can, with the current sentencing practices for the various offences committed by you.

1. I have had regard to the statistical data available for the offences of:

(a) Attempted armed robbery[18]

(b) Recklessly causing injury[19]

(c) Threat to kill[20]

(d) Endangerment offences[21]

(e) Firearm offences[22]

1. I have had regard to the following case collections compiled by the Judicial College, by way of a general overview of the sentences imposed (both in this Court and on appeal) for relevant offending, where practicable, namely:

(a) Attempted robbery at 6.2[23]

(b) Recklessly causing injury at 4.6

(c) Threat to kill at 5.4

(d) Endangerment offences generally at 5.5 [24]

(e) Firearm offences specifically at 12.1

1. I have also had reference to cases that are said to be comparable (or instructively different for that matter). In this instance, I was taken to cases with different versions of the offences of armed robbery or attempted armed robbery like these, committed by very different offenders and resulting in wildly different outcomes.
2. Ms Deighton referred to the following cases:

(a) Aden v The King,[25] where the applicant, with a relevant prior history, after being declined sex, pointed a gun at the victim's head and demanded money, before using the gun to strike the victim's jaw. After a struggle ensued, the applicant fled with none of the items demanded. Relevant factors included a guilty plea, drug use and mental health issues. He was sentenced to a total effective sentence of four years and 10 months with a non-parole period of three years.

(b) DPP v Smith[26] involved two incidents at the same residential property. The offender pointed an imitation firearm at the victim's face and demanded money before striking the victim with his fists and the handle of the gun. The offender ultimately stole the victim's wallet. He pleaded guilty, admitted a criminal history and drug use. He was sentenced to a total effective sentence of four years and eight months with a non-parole period of three years three months.

(c) Shalders v The Queen[27] where the applicant approached four male victims in a car park and produced an imitation firearm, demanded car keys and phones before pointing that imitation item at one victim's forehead. He ultimately obtained the car keys and phone and drove off in the car. Again, this case involved a plea of guilty, criminal history, drug use, and an accused with a diagnosis of ADHD. He was given a total effective sentence of five and a half years with a non-parole period of three years and four months.

1. Mr Pirrie on the other hand referred to the following cases:

(a) Walker and Dargan v The Queen[28] that involved armed robbery in company at a bottle shop. It involved the use of a knife and an imitation handgun. Cash, bottles of alcohol, cigarettes and tobacco were stolen. The offenders pleaded guilty and had mental health issues. One offender was Indigenous. Both offenders were sentenced to eight and a half years with a non-parole period of six years for the armed robbery.

(b) DPP v Hodgson[29] where the respondent committed an armed robbery of a bowling club, in company, in possession of a firearm and a machete. The offender was 22 at the time of the offending, with severe mental health issues. He was on parole at the time. He had prior and subsequent convictions, leading to the conclusion that he had guarded prospects of rehabilitation. He was sentenced to seven and a half years with a non-parole period of five and a half years.

(c) Till v The Queen[30] where the offender and co-accused, armed with a metal bar and knife, entered the flat of a 74-year-old woman, violently assaulting her and demanding money and drugs. He pleaded guilty. He had a mental illness and that was accompanied by protracted drug and alcohol use. He had a relevant prior history. He was sentenced to a total effective sentence of 12 years with a non-parole period of seven.

(d) Johnson v The Queen[31] where the appellant committed armed robbery with an accomplice robbing three victims, one adult and two children, using a loaded firearm. Two of the victims were physically assaulted, and physical violence was threatened. The gun was pressed against the mother's head. There was a further aggravated burglary committed hours later. The appellant was 38 and had a significant criminal history, comprising of some 167 prior convictions. He too pleaded guilty but was sentenced to 16 years with a non-parole period of 13.

(e) Murrell v The Queen[32] where the applicant committed armed robbery, in company, on a family inside their own home. This was accompanied by gross threats of, and actual, violence. The offender had an appalling criminal history of multiple prior convictions of armed robbery and was on parole at the time. He pleaded guilty and was sentenced to 17 and a half years with a non-parole period of 14.

1. One of the observations that can be made from the collection of cases is that, notwithstanding the fact that they were all finalised by way of a plea of guilty, there is a significant disparity in the head sentence and non-parole periods of the cases referred to by the Crown and those provided in support of your plea by your Counsel.
2. Relevantly, all cases referred to by the Crown involved armed robberies that occurred in company, where there were at least two offenders present and sometimes as many as three. Further, all of the cases I was taken to by the Crown involved convictions of armed robbery, as opposed to attempted armed robbery, which carries a higher maximum.
3. Having regard to the above cases, what makes your offending particularly problematic is your discharge of the firearm, alongside the threats you made with it in your hand. Your Counsel took me to one case involving a real firearm and two cases involving imitation firearms, two of which involved the occasion of violence by striking a victim with the weapon. You, though, caused injury recklessly by discharging the firearm at a shed with the knowledge that Toohey was present inside, obviously with one of the rounds striking him in the neck.
4. Many of the sentences referred to by the Crown are higher than I would impose here as they are offences carried out by multiple offenders, often in circumstances of gross violence, and likewise many of the sentences referred to by your Counsel fall below what I consider appropriate in the circumstances, having regard to the particularly aggravating features of your overall offending, primarily your discharge of the firearm.
5. I have reached this conclusion not because of some de facto application of the principle of parity, but because proper application of relevant sentencing principles compels such a conclusion.
6. I have approached the use of the case collections, statistical data and other cases with the necessary caution. They are certainly informative and instructive, but I do not consider that they set the outer limits for the exercise of my sentencing discretion.

1. You entered a plea following the case assessment hearing in this Court. An offer was made on your behalf as early as 25 July 2023. The full timeline of the resolution discussions has already been detailed in my 'case history' above. This plea attracts a significant sentencing discount.[33]
2. You entered pleas of guilty after being committed for trial on these matters after Mr Toohey, Mr Moss, and the informant were cross-examined.
3. The plea is an important sentencing factor, and you are entitled to a meaningful discount.[34] It demonstrates a willingness to accept full responsibility for offending and to facilitate the course of justice as well as demonstrating remorse. The savings to the community (and for that matter the victims) are noteworthy.
4. The principles established back in Worboyes[35] have well and truly diminished over time as the Court emerges from the resourcing issues of the pandemic. Nonetheless, this plea attracts a utilitarian value and will be absolutely reflected in the sentence I impose.

1. It is submitted that your plea also reflects remorse (noting an offer was made at an early stage). Ms Cidoni refers to you expressing disbelief and remorse at your offending.
2. Your remorse is further reflected in your apology letter filed with the Court [36] and recounted to me on 15 April by your mother (and for that matter, indeed almost everyone else who provided a reference for you). I make the finding that you are contrite for what you have done.

1. The issue of your mental health, and how it bore upon the sentence I impose, was the subject of much debate in this plea.
2. You have had previous diagnoses of Schizophrenia and Bipolar conditions, which were said to have existed at the time of the offending.
3. Originally, it was put on your behalf that principles 1, 3-6 inclusive of Verdins were relied on.[38]
4. Ms Cidoni found your offending occurred in the context of a 'major psychotic episode', possibly due to methamphetamine use or pre-existing conditions. She states this episode was characterised by 'intense paranoia, hallucinations, and delusional thinking'.
5. It was submitted that Verdins principles 1, 3 (and 4) and 5 apply, but have a 'modest operation' in the sentencing exercise, taking into account your substance use.[39]
6. In relation to Verdins principles 5 and 6, Ms Cidoni at paragraph [76] said:

Imprisonment is likely to be more burdensome for Mr Dow due to his severe mental health conditions, with continued high representation noted in psychometric testing despite medication. His unstable mood and psychosis can lead to difficulty in following prison rules and interacting appropriately with others, resulting in conflicts with inmates and staff. The high-stress environment of prison may exacerbate his paranoia and hallucinations, making it challenging for him to trust those around him and comply with authority. This can lead to increased isolation, disciplinary actions, and further deterioration of his mental health, making imprisonment particularly burdensome and counterproductive to his rehabilitation.

1. The Crown did not originally concede that Verdins applied to this case in any way to mitigate sentence. The state of the evidence and the work that these principles had to do in this case required the evidence to be tested, and that is what occurred. Ms Cidoni gave evidence on 21 October 2024 and was cross-examined. Regrettably, her evidence provided more questions than answers[40], and to that end, a Forensicare report was sought. A report was prepared and furnished by Dr Shannon Reid, who gave evidence that was of much assistance to everyone involved in this case. The parties were then given an opportunity to reflect on the totality of the evidence and furnish submissions on this topic, which I have had regard to.
2. So consequently, the Court has now received the following vast amount of information regarding your mental health:

(a) The report of Ms Cidoni 31 May 2024[41]

(b) The report of Ms Cidoni 3 July 2024[42]

(c) Discharge summaries of the Albert Road Clinic[43]

(d) Report of Ms Cidoni 4 August 2024[44]

(e) Report of Gina Cidoni 15 October 2024[45]

(f) Report of Shannon Reid 22 January 2025[46]

(g) The viva voce evidence of Ms Cidoni on 21 October 2024[47]

(h) The viva voce evidence of Dr Reid on 15 April 2025 [48]

(i) Defence written submissions on Verdins [49]

(j) The counterpart from the Crown [50]

1. I turn now to the principles, the evidence and their application in reference to the arguments presented by the parties.

1. It is submitted that you were suffering from a 'mental disorder or abnormality' or 'impaired mental functioning' at the time these offences were committed which falls within the scope of 'the wide variety of impaired mental functions or conditions' as contemplated by the leading judgment in Verdins, where the Court of Appeal said impaired mental functioning, whether temporary or permanent ('the condition or impairment'), is relevant to sentencing, and outlined the six ways in which it could be used.
2. Specifically, your counsel relies on the following evidence to establish that you have such a condition or impairment:
   1. The conclusions of Dr Reid that a diagnosis of Bipolar is justified;
   2. You have a 'strong history of both depressive episodes and episodes of mania', and this diagnosis was operational prior to the offending;
   3. You made reports of auditory hallucinations and referential ideas from the television may be due to your Bipolar, and such symptoms are not necessarily excluded by medication;
   4. In custody, you are prescribed Lithium (mood stabiliser), Olanzapine (antipsychotic), and Quetiapine (antipsychotic).
3. Given the totality of the relevant evidence, though, it is not submitted that you were psychotic at the time of this offending. While psychosis can occur in individuals with Bipolar disorder in both depressive and manic states, the evidence is not sufficient to conclude that you were experiencing psychosis at the relevant time.
4. Additionally, you have been diagnosed with social anxiety disorder, panic disorder and OCD. Dr Reid concluded there was 'a very high probability' these diagnoses were present at the time of offending, but the evidence does not establish that those conditions had a direct impact on your actions.

1. Noting that the problematic notion of you being psychotic has now been disavowed, the Crown accept your diagnosis of bipolar disorder.
2. However, it is unclear on the evidence whether you were suffering from symptoms of your bipolar at the time.
3. Dr Reid did not describe any symptom or thought associated with bipolar that led you to offend. He opined that such a deficiency in reported description or memory symptoms can be affected by the presence of mania or the presence of drug use, or intoxication.
4. Dr Reid states it is not possible to identify the relative contributions of drug use and relapse of illness, if present, towards a reduction in capacity for inhibition of disturbed impulses.
5. Dr Reid confirms you were not taking your medication at the time of the offending. Whilst medication does not exclude the possibility of symptoms, it reduces the frequency and severity of relapses. Moreover, you were substance affected. I will deal later with the confounding aspects of drug use.

1. I find it is inarguable that you have a mental illness in the way that is described by Dr Reid.

If you have a mental illness, how is it to be taken into account ?

1. As I said, it has been submitted on your behalf that Verdins principles 1, 3 and 5 apply.
2. Taken in that order, it is said

1. Ms Cidoni noted that you reported 'intense paranoia, hallucinations, and delusional thinking' at the time of offending. Dr Reid stated you reported auditory hallucinations since you were 26, and they would occur within weeks if you did not take your medication. Dr Reid did not ask directly whether this symptom was present at the time of offending.

1. Dr Reid gave evidence you had a 'lack of complete understanding about why [you] took the actions [you] did', and further, Dr Reid concluded it appeared your 'ability to consider alternative courses of action during the offending was possibly limited in that you could not describe being able to go through such a process of considering other causative action'.
2. This inability to describe specific symptoms at the time could be due to you having been manic, and the impact of this on your memory, in addition to drug use.
3. There is also an increased possibility of you experiencing a relapse in your Bipolar at the time of offending due to cessation of medication.
4. Further, whilst the offending was goal-directed, namely in your pursuit of collecting a debt, this can also be consistent with episodes of mania.
5. It is submitted that the evidence establishes, on balance, that you were experiencing a relapse of symptoms of Bipolar at the time of the offending. As outlined, the effects of your drug use at the time cannot be disentangled from the effects of your mental illness. Therefore, it is submitted that this principle has a modest, and I stress modest, operation.
6. The Crown contends that Verdins 1 should not apply, or alternatively, should be limited to mitigate your culpability in the way that is described in Williams v The Queen. [51].

1. Despite the confounding effects of drugs on your mental state and behaviour, I cannot ignore the strong pull of your Bipolar Disorder. I am minded to give it the modest weight your counsel urges me to, tempered in the way that Mr Pirrie argues in the alternative

1. It is submitted that the weight afforded to general deterrence should be moderated somewhat due to your mental impairment, but it is recognised on your behalf that, given the seriousness of this offending, general deterrence will obviously remain of relevance.

1. For the reasons already advanced, the Crown (as above and below with respect to drug use) submit this limb has no application of any kind.

1. I think Ms Deighton is right to say that general deterrence looms large in sentencing for offences of this kind, and although I have taken what some might consider to be a generous view of the role your mental illness plays in the offending, I am minded to very slightly moderate the weight to be given to this principle. Put another way, you are still an appropriate vehicle through which to deter others from offending.

1. As with regard to limb 3, it is submitted that there should be a modest reduction in the weight afforded to specific deterrence.
2. For the reasons already advanced by the Crown, they submit that this limb too has no application.
3. I repeat essentially what I have said above, with a slight change of focus. There is a clear role in this sentence to deter you from further offending, although I have slightly ameliorated the weight to be given to this principle.

1. It is submitted on your behalf that there is a risk that imprisonment will weigh more heavily on you than on an offender without your conditions. Dr Reid concludes that the custodial environment 'could accentuate the symptoms of your anxiety disorder and the stability of your mood disorder', the latter being Bipolar.

1. The Crown says Ms Cidoni, when she gave her evidence, confirmed her opinion at paragraph 76 of her 31 May 2024 report, 'that imprisonment is likely to be more burdensome ... due to [your] severe mental health conditions'.
2. But it should be noted in the same report at [66] that your drug use is a major factor in your mental health. Ms Cidoni stated:

Mr Dow's drug use has significantly impacted his mental health exacerbating symptoms of potential existing conditions and potentially triggering new ones. Methamphetamine has likely intensified his psychotic features, mood swings, and anxiety and led to a heightened state of paranoia, aggression, altered reality, and impaired judgement.

1. It is axiomatic that if you are in prison, your access to drugs will be restricted and your mental health would improve, and that point was succinctly made by Dr Reid in his report.[52]
2. Ms Dow also gave an insight as to the out-of-control nature of your behaviour at the time of the offending, in contrast to the way that you present now. Her evidence highlighted in a way the positive effect imprisonment has had on your reform.
3. The prosecution's submission is that the court can give some weight to the proposition articulated in Verdins limb 5, and I agree this is so.

1. This limb was first relied on by your Counsel's original plea submission, [53] but was not expressly included in the later submissions filed more recently.
2. Moreover, the Crown concede that the court could have given some weight to the propositions articulated in Verdins limb 6.
3. I am minded to give some weight to this limb as the available evidence appears to allow me to make such a finding. [54]

1. The mitigatory effect of mental impairment may be reduced where the condition is self-induced, often by drug and alcohol use.
2. What is clear is that you were under the influence of methamphetamine at the time of the offending. You had been using heavily in the period leading up to the offending, including up until the point of your incarceration.
3. Dr Reid concluded it is possible this drug use contributed to the symptoms you were experiencing at the relevant time. However, it is impossible to identify the relevant contributions of this drug use and your mental illness to your mental state at the time of the offending.
4. In these circumstances, it is maintained that the relevant Verdins principles should still operate in mitigation, but their weight is lessened.
5. The impact of chronic illicit drug abuse over many years on Bipolar, in this case including up until the time of the offending, includes further destabilisation of mood.
6. Dr Reid in cross-examination agreed it was possible that your drug use namely methamphetamine contributed to the symptoms of Bipolar.
7. A brief history of the offender, that is your drug use, is set out in paragraph 33 of Ms Cidoni's report.
8. I am satisfied that you were suffering from the symptoms of Bipolar at the time of offending, which contributed to the same, but it must be noted that you were not taking your prescribed medication in the lead up to the offending (as well as abusing drugs). You attribute your 'state' at the time of the offending, in part, to deficits in your own management of your illness.
9. The Crown says a key issue is whether you knew about the possible consequences of taking the relevant substances (and by extension, I take it, your cessation of taking important medication to treat your illness). Given your preexisting Bipolar diagnosis, illicit drug history, prior convictions and significant rehabilitation opportunities, the Crown says it would be open for me to find your use of drugs in this context is a factor of aggravation, but there is simply not enough information to permit me to make that finding, and the sudden decline in your mental health and your efforts to deal with it make me query how much insight you really did have at such an early stage of the more severe manifestation of your illness. And so I do not make that finding.

1. This is your second period in custody, having spent 42 days on remand in 2022.
2. Since being remanded in March 2023, you have demonstrated a commitment to your own reform. You have completed 'an entire suite' of ATLAS programs and worked as a unit billet. You have had opportunities or sessions with the Koori Liaison Officer, focusing on employment.
3. You take a variety of medications and see a psychiatric nurse monthly.
4. You are most fortunate to have a family that continues to support you and has remained in regular contact. You speak to your parents on the phone daily, and they visit you every fortnight or so. You speak to your brothers once a week, and they visit monthly. Your grandmothers have both visited multiple times, and sadly, in December of 2023, your paternal grandfather died. You were not granted permission to attend the funeral. I note that there is work for you with your family upon your release, a factor that I consider potentially protective.

1. It is now more than two years since your offending and remand, and more than 10 months since you entered your plea of guilty.
2. I accept that you have had the stress of the matter hanging over your head for a period of time, with your fate uncertain. This was a delay not caused by the Crown, nor by you, but one that arose because of the importance of getting to the bottom of your poor mental health. Nonetheless, delay is important in this exercise, and I am mindful of the way that this principle is expressed in R v Merrett, Piggot and Ferrari.[55]
3. You have done what you can within the confines of prison to reform thus far, all the while with the uncertainty of what your fate will be. I have taken this matter into account in your favour.

1. Community protection is relevant given the very nature of this offending. You have proven to be a particularly dangerous and violent individual when you do not manage your illness and abuse drugs.
2. Whilst in the short term, the community will be protected from you by your incarceration, I am required to look beyond the near future.
3. You have respectable prospects of rehabilitation under the right conditions. You have expressed remorse for this offending and engaged in treatment and programs in custody (as above).
4. Dr Reid concludes that you present with 'good interpersonal skills' and with 'good potential for positive contribution to the community', if you can manage your illness and drug use. Ms Cidoni refers to your rehabilitation prospects as cautiously optimistic, provided you receive comprehensive and ongoing mental health and substance abuse treatment.
5. You did not present with acute symptoms of mood disturbance or psychosis during your psychological and psychiatric assessments. Further, you do not have a personality disorder.
6. Your criminal history is relatively limited, with two sentences in Queensland and then a matter in the Victorian Magistrate's Court. These priors are of a different nature and magnitude from the present matter, although they are clearly relevant
7. You have a trade to draw on, and you have a significant work ethic. Your family is protective and supportive to a degree. Significant family support, though, has been provided to you in the past with no enduring success to date.
8. Moreover, there have been the following interventions that have not been successful in the long run (although I stress the endeavour is important):

(a) You have had multiple voluntary admissions to the Albert Road Clinic.

(b) You have had accommodation at a rehabilitation facility in Thailand for three months.

(c) And accommodation at Foundation 61.

1. This offending occurred a short time after you exited the rehabilitation program run by Foundation 61, after approximately three months.[56]
2. In my view, protection of the community would be best served by facilitating your ongoing reform. This, it was said, would be best achieved by allowing you to be eligible for return to the community under controlled or conditional supervision. I agree that the community is best protected this way, and I will impose what I consider to be an appropriate and meaningful non-parole period.

1. I turn to the issue of parity simply for completeness.
2. Judge Lyon sentenced your co-offender, Ms Gibson, on 26 February 2024. Hers was truly an early plea of guilty. She pleaded guilty to: Theft - maximum penalty of 10 years; Assist an offender - maximum penalty of 5 years; Possess methamphetamine - maximum penalty 1 year; and Use firearm in a dangerous manner -maximum penalty of 2 years.
3. She was 33 at the time of offending and had no priors.
4. Her background was one fraught with traumatic life events, and they became particularly pronounced in the lead-up to the period in which these offences were committed. You got to know Ms Gibson during a period of chaos and homelessness in her life. She was sentenced to an 18-month CCO.
5. The nature and number of charges you have pleaded guilty to mean that disparate sentences must apply and apply. There are significant factual differences between you and Ms Gibson which permit such a disparity in sentence.
6. The factual differences include that you were engaged in broader offending spanning over three incidents, and Ms Gibson was involved in one; her involvement was limited to aiding you in your escape from police. She had no priors.

1. I am mindful of the significance in this case and the application of the principle that requires me, when sentencing you for multiple offences, to ensure the aggregate term I impose is a just and appropriate measure of the total criminality involved.
2. There must be an appropriate relativity between the totality of all criminality and the total effective length of the sentence imposed. This is true when I consider the interaction between the charges on the indictment (which have considerable overlap at times) and across both indictments. I have determined an appropriate length for each individual charge, taking the applicable sentencing considerations into account and designated the highest term as the base sentence, and then determined the length to which or the extent to which there should be any cumulation regarding each count and finally I have stood back and considered in light of totality what an appropriate sentence ought to be.[57]

1. I am aware you have spent more than two years in custody to date in relation to this matter and that you have found it difficult.
2. Just punishment and protection of the community must be balanced against the risk that a crushing sentence may ultimately do more harm to the community than good. I have tried my best to balance those matters. I have taken a parsimonious approach as I am required to do.
3. It was submitted on your behalf that a sentence of imprisonment with a shorter non-parole period than otherwise might be imposed is appropriate.
4. I will, of course, fix a parole period for you. It is obvious that you require intensive supervision, monitoring and assistance. In affixing an appropriate sentence for you and allowing for the parole eligibility component, I have had regard, I repeat, to the principle of parsimony; that is, the requirement of me not to impose a sentence that is more severe than that which is necessary to achieve the purpose for which the sentence is imposed.
5. The purpose of parole is to provide for the mitigation of punishment in favour of reform through conditional release when and if appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances.
6. I have attempted to allow a meaningful parole period that may commence (if the Adult Parole Board allows it). This is by design. It is hoped that it will not be too far away such that you lose focus, hope or contact with those who might assist you once you are released. You may yet be in a position to re-enter society with supports, and a sensibly structured sentence would serve the interests of the community in minimising the risk of further offending following the completion of the sentence. [58]

1. I come now, Mr Dow, to the formal part of my sentencing reasons where I pass sentence on you. There is obviously no alternative to a sentence of imprisonment of some real length, to be immediately served, and accordingly, you will be sentenced as follows:

Indictment P10683355A.1 (the first indictment, encompassing the first two incidents)

Attempted armed robbery s.321m and s.75a Crimes Act 1958

s.20 Crimes Act 1958

Discharging a firearm at a premises with reckless disregard for safety

s.131A(1) Firearms Act 1996

Causing injury recklessly s.18 Crimes Act 1958

s.74(1) Crimes Act 1958

Destroying property s.197(1) Crimes Act 1958

s.5(1) Firearms Act 1996

s.73(1) Drugs Poisons and Controlled Substances Act 1981

1. It is my intention to bring about a total effective sentence of seven years and four months' imprisonment, that is to say, 88 months.
2. I will declare that you serve a non-parole period of four years, which is 48 months, meaning that you must serve around 55 per cent of the head sentence before being eligible for parole. That does not, of course, mean automatic release.

1. Pursuant to s18 of the Sentencing Act 1991, I declare that you have served 739 days by way of pre-sentence detention and such a declaration will be entered into the records of the court.

Section 6AAA Sentencing Act

1. Section 6AAA of the Sentencing Act 1991 (Vic), requires me to state what you would have received, Mr Dow, had you pleaded not guilty and run a trial and convicted by a jury. But for your plea of guilty, I would have sentenced you to eight years and 10 months and I would have set a non-parole period of six years and four months

1. I will order the firearm be forfeited and the drugs be disposed of in accordance with the Orders provided.
2. Finally, because of the finding or the conviction imposed on the theft of motor vehicle charge, pursuant to s89(4)(a) of the Sentencing Act 1991, I must suspend your licence or permit for a specified time. I have cancelled your licence and disqualified you from driving for a period of 12 months, commencing today.[59]

[1] This is category 2 offence which means with the consequence that a sentence of imprisonment must be imposed other than a combination sentence of imprisonment with a community corrections order, unless a special reason exists. No special reasons were relied on under s.52H of that Act.

[2] Where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in that drug of dependence - to a penalty of not more than 30 penalty units or to level 8 imprisonment (1 year maximum) or to both that penalty and imprisonment.

in any other case - to a penalty of not more than 400 penalty units or to level 6 imprisonment (5 years maximum) or to both that penalty and imprisonment.

[3] The following is derived from Exhibit A: Summary of Prosecution Opening for Plea dated 28 June 2024, treated as agreed facts

[4] A summary matter that is no longer charged and I do not take into account.

[5] A summary matter that is no longer charged and I do not take into account.

[6] See Exhibit C: Photographs of victim in hospital.

[7] See Exhibit B: Crime scene photographs numbered 3 to 96 (not consecutively).

[8] Not the subject of a charge and I do not sentence you for this.

[9] Not the subject of a charge and I do not sentence you for this.

[10] Exhibit 2: Report of Gina Cidoni dated 31 May 2024 at [22].

[11] See Exhibit E: Photographs of stolen vehicle and items located in that vehicle including the gun at the time of arrest.

[12] The principles in Berichon and Houssein v The Queen [2013] VSCA 319 apply.

[13] Exhibit 6: Letter of Domonic Bell from Foundation 61 dated 26 June 2024.

[14] Exhibit 2: Report of Gina Cidoni dated 31 May 2024 and Exhibit 3: Supplementary Report of Gina Cidoni dated 3 July 2024.

[15] A matter I have accommodated when considering the issue of totality.

[16] Exhibit 6: Letter of Domonic Bell from Foundation 61 dated 26 June 2024; Exhibit 7: Letter of Jaqui and Mike Dow dated 26 June 2024; Exhibit 8: Letter of Jordan Dow dated 26 June 2024; Exhibit 9: Letter of Taylor Dow dated 2 July 2024; Exhibit 10: Letter of Jeffrey Newton dated 26 June 2024; Exhibit 11: Letter of Lisa Tregenza dated 25 June 2024; Exhibit 12: Letter of Nathan Favre dated 1 July 2024; Exhibit 13: Letter of Verna Favre dated 30 June 2024; Exhibit 14: Letter of Mitchell Dow Faxed 27 June 2024; Exhibit 15: Wadamba Letter of Support from Brady Jones.

[17] R v Williscroft [1975] VicRp 27; (1975) VR 292.

[18] Sentencing Advisory Council SACStat 'Attempted armed robbery - Higher courts sentencing outcomes, 1 July 2018 to 30 June 2023'.

[19] Sentencing Advisory Council SACStat 'Recklessly causing injury - Higher courts sentencing outcomes, 1 July 2018 to 30 June 2023'.

[20] Sentencing Advisory Council SACStat 'Make threat to kill - Higher courts sentencing outcomes, 1 July 2018 to 30 June 2023'.

[21] Sentencing Advisory Council SACStat 'Use firearm - discharge shot with reckless disregard - Higher courts sentencing outcomes, 1 July 2018 to 30 June 2023'.

[22] Sentencing Advisory Council SACStat 'Prohibited person possess, carry or use a firearm - Higher courts sentencing outcomes, 1 July 2018 to 30 June 2023'.

[24] noting their lessened utility as they deal expressly with reckless conduct endangering life or serious injury, which is not what you have pleaded to.

[25] [2024] VSCA 21.

[26] [2024] VCC 209.

[27] [2020] VSCA 323.

[28] [2019] VSCA 137.

[29] [2019] VSCA 49.

[30] [2018] VSCA 122.

[31] [2011] VSCA 348.

[32] [2014] VSCA 337.

[33] One that ought to be manifest in the s.6AAA declaration.

[34] Phillips v The Queen [2012] VSCA 140 at [38].

[35] Worboyes [2021] VSCA 169, [39].

[36] Exhibit 1: Outline of Plea Submissions dated 28 June 2024.

[37] [2007] VSCA 102; (2007) 16 VR 269.

[38] Exhibit 1: Outline of Plea Submissions dated 28 June 2024 at [37] - [39].

[39] Exhibit 20: Submissions on Verdins and comparable cases at [10].

[40] Which included a circuitous line of reasoning that you must have somehow been psychotic because you resorted to irrational force to enforce a drug debt. See Transcript of further plea at p.20.

[41] Exhibit 2: Report of Gina Cidoni dated 31 May 2024.

[42] Exhibit 3: Supplementary Report of Gina Cidoni dated 3 July 2024.

[43] Exhibit 4: Discharge Summary of Albert Road Clinic.

[44] Exhibit 16: Report of Gina Cidoni dated 5 August 2024.

[45] Exhibit 17: Report of Gina Cidoni dated 16th of October 2024.

[46] Exhibit 18: Report of Dr Reid 22 Jan 2025.

[47] Transcript of 21 October 2024 - 44 pages. Ms Cidoni's notes were furnished on that date too, as Exhibit 19: Notes of Gina Cidoni dated 25.05.2024.

[49] Exhibit 20: Submissions on Verdins and comparable cases.

[50] Exhibit F: Crown submissions on Verdins and comparable cases.

[51] [2018] VSCA 171.

[52] Exhibit 18: Report of Dr Reid 22 Jan 2025 at [53].

[53] Exhibit 1: Outline of Plea Submissions dated 28 June 2024 at [37].

[54] Given what Ms Cidoni has said earlier.

[55] [2007] VSCA 1; 14 VR 392.

[56] Exhibit 6: Letter of Domonic Bell from Foundation 61 dated 26 June 2024.

[57] Norman [2023] VSCA 213 [54]-[55].

[58] Mohamed [2022] VSCA 136 [66].

[59] I have had regard to the principles in R v Novakovic [2007] VSCA 145; (2007) 17 VR 21, and Koukoulis v The Queen [2020] VSCA 19, when arriving at this period. You will have been in custody for more than 4 year at the earliest by the time you are released. You will be required to undergo intensive parole. There is the prosect of work for you that I see as protective, and I do not wish to compromise that by having you unlicenced once released.