DPP v Noonan [2021] VCC 1343

3 Around 3:10am, two police officers pulled into the local McDonald's store to have a break from their divisional van duties. They parked their divisional van in the McDonald's carpark. The police officers made their way from the carpark into the McDonald's store. This was around the time that you and Papa drove through the McDonald's carpark, passing the police van. You and Papa then drove out of the carpark, performed a U-turn and then went back to the entrance of the carpark before stopping briefly and then accelerating away. It is clear that, having seen the police van, you and Papa were scoping the scene. Papa then drove the car back towards the carpark. You then aimed the shotgun at the police car and fired and it hit the police car.

4 The police officers ran to the entrance of the McDonald's store to investigate. What they saw and heard was Papa then performing another U-turn and driving by the carpark, sounding the horn while you woohoo'd from the passenger seat. Plainly, you were in a way celebrating your outrageous and dangerous behaviour. The police car was damaged by shotgun pellets, including at the rear where the compartment window was smashed. You and Papa, however, did not end it there.

5 Other police assistance had been summoned. While one police officer was on the radio to police command, you and Papa drove back in the vicinity of the car. Papa stopped the car some 200-250 metres away and you again fired the gun. It is not said that the shot was directed at the police car or the police. The original two police officers retreated inside the store and gathered the three employees in order to take cover in the manager's office. Other police arrived, or arrived back from where they were, and they were let into the store for their safety. At this point Papa and you again drove back to the scene, this time not using the shotgun but rather the car as a weapon. Papa rammed the other police car twice. You and Papa then drove off again. Both police cars were damaged, first by the shotgun pellets and, second, by the ramming.

6 At around 4am, the Critical Incident Response Team were able to safely extract the police and the McDonald's staff who had remained sheltered in the store. More police arrived at the scene but you and Papa again drove past, sounding the horn and yelling out to the police. You were deliberately gloating over what you had done. Eventually, the Police Air Wing was able to track the movements of the car. A man called Foon, who was in the car with you and Papa at some point, was dropped off at his car which was parked in a nearby convenience store. Foon was quickly arrested. Later, he cooperated with the police, providing the police with information about you and Papa as the main offenders.

7 Driving on from there, you and Papa arrived at Papa's house and he got out, leaving the car with you. Papa was quickly arrested by the Critical Response Team. You then drove the car to a local street, parked and taking a bag from the boot of the car, you ran down a nearby lane. There you dropped the bag before continuing to run into adjourning parkland. You were heading for your house. Whilst running through the park, one of your shoes fell off but you managed to make it back to your house. Soon after you arrived, you were arrested. Later, forensic tests made it clear that it was you who fired the gun and the prosecution put its case that way. You were granted bail on 27 May 2020. Your plea was listed to be heard at the same time as Papa's but you failed to answer bail in April and June 2021. A warrant for your arrest was issued. On 19 June 2021, you were arrested again and remanded in custody.

8 In my reasons for sentence in the Papa matter, I expanded on details of what was recovered from the CCTV footage at the house in Sunbury where you arrived with the firearm. I do not need to repeat that detail here. As to the major incident, you have pleaded guilty to using a firearm in a public place and damaging an emergency vehicle and, separately, possession of an unregistered handgun. The maximum term for these crimes is 10 years imprisonment for the use of a firearm in a public place, five years imprisonment for damaging a police car and seven years imprisonment for the possession of an unregistered handgun. You have pleaded guilty also to related summary offences of unlicensed driving, committing an offence while on bail, contravening conduct condition of bail and possession of cartridge ammunition. The maximum terms for these offences are three months for committing an indictable offence while on bail and the breaching of bail, six months for driving unlicensed and a fine for possession of cartridge ammunition.

9 The maximum term of an offence is a factor that I am bound to take into account in the sentencing process. The maximum term articulates just how serious the community, through our Parliament, considers these crimes. As to the gravity of these crimes, mainly the shooting and the ramming of the police car with dangerous and serious crimes. In so far as using a loaded firearm in a public place, yours is a very serious example of that offence. That is so for the following reasons.

(a) The use of a firearm in the first episode of shooting was targeted and deliberate. It was not, for example, just shooting in the air to frighten or for no real purpose which perhaps better describes the second episode of the shooting.

(b) In the first shooting episode, the target was a police car, thus, this was an attack on law enforcement using a deadly weapon.

(c) The public place was in a shopping area, more relevantly, in a carpark of a popular fast-food store and one where it is wildly known that it remains open late, if not for 24 hours. Thus, while it was 3:30am in the morning and quieter than in daylight hours, the crimes remain highly dangerous and frightening.

(d) You and your co-accused's gloating conduct shortly after each of the episodes reveals your brazen contempt for law enforcement. While these matters more impact on your level of moral culpability, it is also revealing of how little regard you have for the safety of others in our community. As to the damaging of the police vehicle by ramming it, that too was an example of deliberate, brazen and contemptuous offending directed at the police. This was not some unfortunately or even reckless collision. Papa was the driver and he rammed the second police car not once, but twice.

10 The assessment of your moral culpability is to be viewed, taking into account a number of factors. Firstly, what you did was to actually shoot the gun you had earlier brought to the house and then with you into the car. Both you men are liable for the particular act of the other. That is, Papa is responsible for what you did in shooting the gun and you are responsible for what he did in driving and then ramming of the police car. You each played your role in these very serious crimes. You are younger - perhaps a good deal younger - than you co-accused Papa. Nonetheless, I took into account his low IQ as making it more likely he would follow directions rather than orchestrate the whole episode. Having heard your plea, I am not inclined to finding adversely to you relative to the co-accused on the question of roles or moral culpability.

11 That said, in the circumstances, the usual lower moral culpability that attaches to younger offenders is not as clear in this particular case. What remains is that your moral culpability, just like that of Papa, remains high, though, in his case, unlike yours, he had concerning prior convictions for offences targeting police. I do take into account that, in addition and separately to Papa, you have pleaded guilty to the possession of a handgun and ammunition, being a homemade firearm found at your premises on your arrest. While it was rudimentary, it reveals a concerning connection that you have to firearms, taking into account the weapon that you had and fired on the night.

12 What is important in my consideration of the just and appropriate sentence is not only the seriousness of the offences but also important matters personal to you. Foremost of these is your very young age at the time of these crimes and that now you remain still a young man. You were not much past your 18th birthday when you committed these crimes. You are now 20. Accordingly, a key part of my task is to do what can be done to facilitate your rehabilitation. Because of your youth, this ordinarily would be the most important sentencing consideration. However, because of the gravity of the offence, your rehabilitation must be balanced against important sentencing purposes of denunciation and the need to send a clear message of deterrence. In your case, despite your youth, deterrence still plays a role. In this regard, I have considered and, in my view, applied the principles articulated in Azzopardi,[1] and also the earlier case of Mills.[2]

13 The material provided and the plea made by your counsel revealed that you had a particularly unstable childhood and very limited education. In this regard, sadly, your formal education came to an end at year 7. Your father had struggled with a heroin addiction. He and your mother separated when you were about age seven. There were times thereafter that you were removed from your mother's home by order of the Children's Court as a consequence of applications by the Department of Human Services. You were, at one point, moved to reside with your father while he underwent residential rehabilitation at Odyssey House. At this time, you stopped going to school.

14 You have an older brother. He wrote an important letter to the court about you. So did your brother's partner. They both see a good side to you but lament how you got involved with the wrong crowd in your teenage years. Although both you and your brother would say that you did not want the sort of lives that your parents lived, unfortunately you took to drugs. It seems your brother has been a very dedicated sportsman and now operates a landscaping business. He remains supportive and speaks of how you have learnt from the periods of incarceration that you have had in recent times.

15 It is clear that what has dominated your life from an early age is your fierce addiction to drugs. You commenced using drugs at age 15, moving quickly to becoming addicted to that dreadful drug ice. It is clear that you were using drugs at the time of this offending. In fact, you came to meet the older co-accused and the man whose house you were at before the offending through your mutual drug use. Your drug using lifestyle has meant that you have had limited employment history, having worked only for short periods with your father at the Dandenong Markets and, at some point, in concreting but you have been largely unemployed since leaving school when you were 16 and thereafter you have been using drugs regularly, apart from your periods on remand.

16 You have been before the courts prior to this offending but that has been limited and in the Children's Court. You came before this court, the County Court, and was sentenced by Judge Doyle on 4 May 2020 to a 90-day sentence of imprisonment, being the time that you had spent on remand or thereabouts for a robbery that you committed some six days before the offending that is now before me. You were arrested on 6 August 2019 for that robbery and bailed. Thus, you were on bail for a serious offence when you committed this offence. This gives rise to one of the summary bail offences that I must deal with today.

17 One matter that gives hope for reform, is that following the completion of the sentence imposed by Judge Doyle, you were bailed to a residential drug rehabilitation facility called Dreambuilders. I have read the letters provided to the court from that organisation about your progress while you were in that facility. You did make a solid impression and were seen at one point as a leader in the program. You entered that strict program on 27 May 2020 and, as I said, made solid progress through the first two stages of their four-stage program. It seems in March 2021 you met and became involved in a relationship with another resident or became too close to them. This seems to impede your progress, as well as the stressors that were involved in you moving to the next level in the program. You fell back into drug use which was detected. There is a strict requirement for abstinence and, as a consequence, you were required to leave the program on

30 March 2021. You then reconnected and commenced residing at the facility again on 8 April 2021 but left again on 13 April 2021.

18 Leaving the facility was in breach of a bail condition, giving rise to another summary offence. From this point, you did not comply with bail and failed to appear when your plea was listed. As I have said, you were arrested on a warrant on 19 June 2021 and have remained on remand in custody since that time. All up, you have been in prison for 371 days but 90 of those days were attributable to the sentence imposed by Judge Doyle. I do not overlook that while part of the declaration that I will make pursuant to section 18 of the Sentencing Act 1991 (Vic) will be 281 days. You have been in prison for longer than that. I also take into account in accordance with (indistinct) that you have been in a strict residential drug rehabilitation facility for approximately nine months up until you finally left on 13 April 2021. This time in the drug rehabilitation facility is, as I said, a sign that you can reform by dealing realistically and honestly with your problems with drugs. There is nothing alleged that you offended in the short time after you left the facility, up until the time of your arrest.

19 Your time on remand has, in part, been during COVID caused restrictions on prisoners in this state. It is well recognised by the courts that remand in those circumstances has been much more onerous for prisoners. This situation continues and will make your whole time in custody that much harder than it would have been but for the pandemic. Prison is not what it once was. It is much harder and I will take that well into account in fixing the sentence. That said, you have proven that you are able to abstain from drugs that can be available within the facilities with clean urine tests. You had, up until that point, done vocational courses in the prison that were available until restrictions.

20 You have pleaded guilty and, in my view, at an early point in the proceedings, notwithstanding, that it is now some two years since the crimes were committed. So I do take into account the delay and, more particularly, the value of your plea in these times when, again, jury trials are suspended. The Court of Appeal has made it clear that sentencing judges must give more of a discount to those pleading guilty in these times; that is, in times when the criminal justice system is in crisis. The benefit to those who plead guilty must be palpable to them and to the community.

21 From the letters written by your brother and his partner, I take into account that, in addition to your plea of guilty, you are remorseful and do wish to put drugs and offending behind you. Your counsel Mr Lawrence conceded that a term of imprisonment was unavoidable but in the circumstances of what you had done so far on remand and your youth and general prospects for rehabilitation, that I should not add to your current time in custody but, rather, have you placed on an onerous but rehabilitative Community Correction Order. Prosecution contended that notwithstanding the matters raised in mitigation, in particular your youth, there was no other appropriate sentence than one of imprisonment with a non-parole period set.

22 I have anxiously considered all these matters and in particular whether you should be placed on a Community Correction Order. There are a number of factors that favour you and your prospects and there are factors tending the other way; most particularly, the seriousness of shooting at a police car in the highly dangerous and contemptuous way you did. In the end, I am of the view that a head sentence and a non-parole period must be fixed, grave as it is to sentence a young man to a period of imprisonment. I am asked and I have considered the question of parity with the sentencing posed on the older and more criminally experienced Mr Papa. It is your personal circumstances that establish a basis for a justifiably different and lower sentence for you. Given your youth and limited criminal history and your efforts to rehabilitate while on bail, your sentence can be and ought be lower than his. The need to protect the community in your case as opposed to his is less and the matters of deterrence can be, to a degree, ameliorated by reason of the fact that you were at the time just out of the Children's Court jurisdiction and, as I have said a number of times, you remain a young man.

23 Doing the best I can in respect of these matters I impose the following terms of imprisonment:

• For Charge 1, using a loaded firearm in a public place, you are sentenced to three years imprisonment.
• Charge 2 of damaging an emergency vehicle, you are sentenced to

12 months imprisonment.

• Charge 3 for the possession of the unregistered handgun, you are sentenced to six-months imprisonment.
• For Summary Charge 1, the contravention of the condition of bail, you are sentenced to one month imprisonment.
• For the Summary Charge 7, the possession of cartridge ammunition without a license, you are convicted and fined $200.
• For the summary charge of unlicensed driving, you are convicted and fined $300.
• The summary charge of committing an indictable offence while on bail, you are sentenced to a term of imprisonment of one month.

24 I order that four months of Charge 2 and two months of Charge 3 be cumulative on each other and on the base sentence of Charge 1. That gives a total sentence of three years and six months and I fix a non-parole period of one year and six months or 18 months.

25 Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of five years with a minimum non-parole period of three years and two months.

26 HIS HONOUR: Do I have to make an order against his license, Mr Fisher?

27 MR FISHER: Yes, that's sought. It's sought, Your Honour.

29 MR FISHER: I think I made some submissions on that in relation to (indistinct) and that's in relation to the driving offence but also the fact that the principle offending was connecting to (indistinct)

30 HIS HONOUR: Yes. Mr Noonan, there is a reason to impose a penalty in respect of your license and what I intend to do is cancel all licenses that you may have held, disqualify you from driving in Victoria for a period of nine months. Now, you have served, as I've said a number of times, a period in custody. That period has been calculated or reckoned as 281 days and I declare that 281 days of the sentence that I've just imposed. I'll ensure that this declaration is entered into the records of the court, transferred or communicated to the prison authorities so they are in no doubt that you have already done 281 days of the sentence I've just imposed. Are there any further orders? Forfeiture or anything of that kind?

31 MR FISHER: Yes. I understood, Your Honour, there was both a forfeiture and disposal order.

36 HIS HONOUR: All right, I'll make those, sign those formal orders. Is there anything else required here?

38 MR LAWRENCE: Not from the defence's point of view, Your Honour.

41 HIS HONOUR: The calculations were straightforward, I hope. They've added up correctly?

42 MR LAWRENCE: I believe they have, Your Honour, yes.

43 HIS HONOUR: Thank you. There's nothing further. Do you wish to speak to

44 MR LAWRENCE: Yes, I'd be grateful for that, Your Honour.

45 HIS HONOUR: All right, I'll arrange that. I think it just has to be you and him, not others that might otherwise speak to him in the usual way. So I'll leave. You work it out with Ms McKellar and I thank counsel for their assistance in this matter and the matter of Papa. Thank you.

[1] Azzopardi v The Queen [2011] VSCA 372.

[2] R v Mills [1998] 4 VR 235.