DPP v Taylor [2019] VCC 2220

Mr Black attended at 33 Fairbairn Drive, Corio in response to Bernek's earlier telephone calls. You drove. When you arrived, Ms Bernek was waiting with her belongings on the footpath. Mr Black approached her and put her belongings into the car and she got in.

7. That should have been the end of the matter. However, you and Mr Black, wearing disguises, then went to the house and knocked on the front door.

Mr Black was in possession of a loaded .22 firearm, with you having supplied the ammunition. Gray opened the front door and saw two males, one holding a .22 firearm cut down to pistol size, and observed that both males were wearing hoodies, one with a skull-type bandana wrapped around his face. Gray immediately closed the front door and, whilst he was still standing behind the door, Mr Black discharged the firearm, narrowly missing Gray's head.

8. Police later attended 33 Fairbairn Drive, Corio and during a forensic examination located a single spent cartridge ammunition behind the tallboy in the hallway of the house. This gives some idea of the direction of the shot.
9. Graf had been sitting in the lounge room when he heard Gray yell, 'There are two blokes outside, they've got guns'. As Graf ran through the dining area, he heard a pop come from the front door and felt some debris hit him on the right side of the face. You and Mr Black then drove away. It is these facts that comprise Charge 1, discharge firearm at premises with reckless disregard to the safety of any person, and Charge 3, being a non-prohibited person possessing an unregistered firearm. You take responsibility for these two charges as Mr Black's co-accused.
10. On 18 December 2018, police investigators executed a search warrant at your address. You were present and arrested in relation to your alleged involvement in this shooting. During your record of interview you told police, "I don't know anything, mate. All I know is Gordon came to my house and he had Billy Joe with him and he was going on about stupid-arse fuckin' Tamara" and "Oh, something about the day he said, someone done something to Tamara and he had to go there and get her and he wanted me to go and I said no'.
11. Gray and Graf did not receive any physical injuries, however, not surprisingly, they feared for their lives. Mr Gray was particularly vulnerable given the unexpected nature of your visit. He was unarmed and faced with two offenders, one of whom was armed with a sawn-off .22. Whilst they have not provided victim impact statements, I have little doubt that this experience would have been terrifying. It occurred at Mr Gray's residence, an environment in which he, and any guest of his, was entitled to feel safe. Mr Gray was not the subject of Mr Black's suggested grievance and it was not your grievance at all. Whilst the offending was carried out over a relatively short period of time, I am sure that gave Mr Gray or Mr Graf little comfort. Firing a shot towards a house knowing there was at least one, if not two, people inside is exceptionally dangerous. Mr Gray appears to be innocent in the context of these events. In addition, it was a populated neighbourhood. It was more good fortune than good management that no one was hurt.
12. The offending clearly had a degree of premeditation, given it required the sourcing of a weapon and ammunition (for which you take responsibility), disguise and the need to travel to a specific or targeted address. I find the objective gravity of this offending to be high.
13. The Crown opening refers to you describing Mr Black as a respected member of the Aboriginal community and someone that you respected and looked up to. I accept that your relationship with him, and regard for him, played a role in your decision to be involved. It is otherwise hard to fathom.
14. As previously stated, the charge of discharge firearm with reckless disregard for the safety of any person carries a maximum penalty of 15 years imprisonment. The gravity of such offending is shown in its prevalence and its potential to undermine a sense of safety in the community. The second reading speech when this charge was introduced refers to the fact that:

'The high penalties for these offences recognise the seriousness and the potentially lethal consequences of firearm use, particularly the dangers to the community posed by the firing or carrying of a loaded firearm.'

1. Mr Black was sentenced on the basis that he clearly had the relevant intention at the time that he discharged the bullet into Mr Gray's premises. You will be sentenced on the same basis. The only charge you have in common with

Mr Black is Charge 1, discharge firearm at a premises. For this charge, Mr Black was convicted and sentenced to five years and three months imprisonment. In terms of the possession of the gun on 27 October 2018, Mr Black was charged with being a prohibited person in possession of a firearm, which carries a maximum penalty of 10 years imprisonment. The charge that you face of being a non-prohibited person bears a lower maximum penalty.

2. The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstance of co-offenders and avoids unjustifiable differences in co-offenders' sentences. As stated in the sentence of Mr Black, I find his role in relation to the common charge, discharge firearm, to be more significant than yours. He was clearly playing the lead role in the offending. He was responsible for the actual shooting and his prior history is far more significant than yours.
3. Whilst I take into account the parity principle, I am of the view that the sentence I must impose on you for Charge 1 will have to reflect those obvious differences. I note that these particular charges, discharging and possessing the firearm, arise from the one transaction. The closeness in connection between these two offences make it therefore necessary to have regard to the principle of totality and also the need to avoid double punishment, given that the act of possessing the firearm was essential to the conduct that gave rise to the offence of discharging that firearm. The possession of a loaded firearm cannot be seen as an aggravating feature of the discharge firearm charge, which by its very nature also entails the use of a loaded firearm. The same applies to the fact that it was fired at premises. This aspect will be reflected in the individual sentences imposed and the degree of cumulation between the charges, which will need to be moderated accordingly. In saying that, I am referencing Charges 1 and Charge 3 on the indictment.
4. Upon your arrest you were lodged in the police cells with a Victoria Police Covert Operative 313, at which time you gave an account of the circumstances in which your offending took place. That account will not be used against you. You also told the covert operative that you were able to source firearms. You were then released pending further enquiries. Following your contact with Covert 313 in the police cells, police were granted authority to engage in controlled conduct for further contact to occur between you and Covert 313. Thereafter there were a number of contacts and conversations between you and the covert operative in relation to accessing firearms.
5. On 22 December 2018 you contacted Covert 313 and arranged to meet at your home. You disclosed further information to him in relation to the shooting on 27 October 2018. You also told him that during the execution of the search warrant at your house on 18 December 2018, police had failed to locate the barrel of a firearm, used in the shooting, hidden behind the bar in the rear shed. Police had also failed to locate a significant quantity of 12-gauge shotgun shells and .22 calibre ammunition hidden in an esky. During this meeting on 22 December 2018, you sold Covert 313 a total of twenty-four 12-gauge shotgun shells for a total of $50. This is part of related Summary Offence 4, possess ammunition without a licence. You again told Covert 313 that you would be able to source a firearm for him to purchase.
6. Given your experiences at 33 Fairbairn Drive on 27 October 2018, I find it staggering that you were prepared to be involved in further offending involving the supply of firearms. The fact that you were undeterred gives rise to genuine concerns about your prospects for rehabilitation, the need for specific deterrence - that is, putting you off further offending - denunciation, and certainly the need to protect the community, which is the whole tenet of legislation involving firearms.
7. On 8 January 2019, you sent Covert 313 a text message offering for sale a

12-gauge shotgun and a 410 shotgun for a total of $900. You later sent another text message offering for sale a .22 calibre rifle with scope. You offered the three firearms for a combined total of $1,300. The transaction was to be conducted in Geelong on 11 January 2019.

8. On 10 January 2019, Covert 313 engaged in a telephone conversation with you during which you said you were able to facilitate the purchase of a 12-gauge shotgun, 410 shotgun and .22 calibre rifle from an associate. The price of the firearms was negotiated from $1,300 to $1,000. You also told Covert 313 that another associate was selling either a 30-30 rifle or 308 rifle for a total of $1,000.
9. On 11 January 2019, you and Covert 313 exchanged several messages regarding the 308 rifle, which included you sending a photograph of that weapon. You also sent a photograph of ammunition. Arrangements were made for the purchase of the firearm to take place on 14 January.
10. On 14 January 2019 you contacted Covert 313 to make further arrangements to facilitate the sale of the .303 Lithgow rifle. Covert 313 picked you up and you directed him to an address. You made a phone call. An associate arrived who you introduced as 'Hunter'. 'Hunter' opened the boot of his car and showed Covert 313 a .303 Lithgow rifle and a handgun which he said was not for sale.
11. Covert 313 purchased the .303 Lithgow rifle, which is part of related Summary Offence 6, unlicensed category A or B longarms firearms dealer, as well as ammunition, which forms part of the related summary offence, possess ammunition without a licence. That purchase was for a total of $1,250, from which you also received payment. Photographs were tendered of the weapon.
12. Covert 313 then drove you home and spoke with you about the sale of other firearms. You mentioned that you were still awaiting contact from the supplier for a .22 calibre rifle with a scope, 410 rifle and a 12-gauge shotgun.
13. Between 18 and 22 January 2019, you and Covert 313 exchanged text messages in relation to the availability of the .22 calibre rifle with a scope, the 410 rifle and 12-gauge shotgun. At a later meeting you stated they had already been sold.
14. I note that the charge of being an unlicensed firearms dealer only covers the period between 10 January 2019 and 14 January 2019, and it is therefore only this period for which you fall to be punished.
15. During this last meeting you also told Covert 313 that the firearm used on

27 October 2018 had been 'cut down' prior to the shooting and was now gone. You stated that you kept the barrel to make a few handguns.

16. On 26 February 2019, you were arrested and transported to the Geelong police station, where an interview was conducted. You again denied any involvement in the shooting at 33 Fairbairn Drive, Corio as well as the sale of any firearms, stating, 'How many times have I gotta tell ya, I wasn't there mate. I don't know what you're on about firearm offences, like, I haven't even got any'.
17. On the same day, a search warrant was executed at your address. Police located an unregistered air rifle barrel, which is Charge 4 on the indictment, being a non-prohibited person did possess a category A or B longarm that was not registered. Consistent with descriptions provided by you during conversations with the covert, police seized a .22 calibre firearm barrel behind the bar area in the rear shed and assorted ammunition rounds, including shotgun and .22 ammunition. Again that forms part of the possess ammunition charge. The ammunition was located inside an esky in the rear shed.
18. The summary charge of possess ammunition occurs between 22 December 2018, when you first had contact with Covert 313, and your arrest on 26 February 2019. Ballistics identified the .303 Lithgow rifle sold by you to the covert as operational. It was ascertained that, although the firearm was registered, it had been reported as stolen from Western Australia.
19. I find your dealings with the covert to be calculated and clandestine offending. You had all the connections to facilitate this offending and appeared enthusiastic in so doing. You could have only had the belief that the firearms were likely to be used for an illegitimate purpose, and knew the obvious risks associated, given the events of 27 October 2018. Your offending was likely motivated by profit. The objective seriousness of and your moral culpability for this offending is particularly high. There is real gravity in the charge of carrying on the business of dealing in firearms. It is an offence which only carries a maximum of two years imprisonment. In these circumstances, that maximum appears wholly inadequate but I am bound for sentencing purposes by it.
20. There needs to be a clear message sent to the community that access to weapons by offenders in circumstances of such inherent dangerousness will not be tolerated. As such, considerable weight needs to be given to the principle of general deterrence and denunciation for each charge, constituting a warning to those considering committing similar offences.
21. In terms of your criminal history, you have one prior court appearance which effectively sits in the middle of the dates of the offending before me. On

6 January 2019, you appeared at the Geelong Magistrates' Court in relation to three charges of driving whilst disqualified, two of using an unregistered vehicle, one of using a vehicle not complying with registration standards, one of using an unregistered vehicle on a highway and one of failing to answer bail. You received a financial penalty and orders against your licence. This appearance plays little weight in the sentencing mix of the matters before me.

22. I do take into account that you have pleaded guilty at an early opportunity without testing any of the evidence. Your plea has utilitarian value and has saved the court the time and expense of contested proceedings. More importantly, it has saved the need for witnesses to relive the events. I accept that, in all the circumstances of your case, your plea is also borne of remorse. Those matters will all be taken into account in your favour.
23. In terms of your personal circumstances, you are now aged 35 years and are one of five brothers and three sisters. Your parents separated when you were around five years of age. Your father apparently died when you were around seven years of age from his own use of alcohol and drugs. Your mother formed a new relationship and you suffered serious abuse from your then stepfather from the age of eight years. This abuse involved severe physical violence and denial of food and water. You instructed your counsel that your sisters were sexually abused by this man.
24. By the age of 10 or 11 years, you were placed in a foster home but returned to your mother when you were around 12 years of age. I accept that this is an extremely traumatic upbringing. You must have some form of inner resilience as, despite this upbringing, it is only in more recent times that you have come before the courts. At the age of 18 years you met your wife, Sarah Williams. She had also suffered serious childhood abuse. This relationship remains ongoing and you now have five children aged between the ages of 16 and one year. You are also the stepfather to two of your wife's other sons.
25. You have worked most of your adult life and have skills as both a glazier and a concreter. These skills would remain available to you upon your eventual release into the community.
26. You have apparently had a long-term reliance on cannabis, using 2 grams a day prior to the offending. Over the past three years, there has also been intermittent methylamphetamine use.
27. Tendered on your behalf was a report authored by Dr David Ball, psychologist, dated 1 November 2019. Your counsel does not call into aid the principles contained in The Queen v Verdins & Ors. Professor Ball did not detect what he describes as any "frank mental illness". Whilst the report refers to you as being socially detached with low self-esteem and more likely to be a follower rather than leader - a description I accept for your offending on 27 October 2018 - the same description cannot apply to your subsequent offending relating to dealing in firearms. He diagnoses you as suffering from severe cannabis disorder.
28. In the last couple of years you have struggled to find regular work, which has been a financial pressure upon you and your family. During this time your wife has begun medication for depression, your three-year-old son has been diagnosed with anxiety and your 16-year-old daughter began medication for depression and anxiety. In October of this year, your two youngest children were removed from their mother's care. You have obviously missed, during your remand, a number of important family milestones.
29. Your wife, Sarah Williams, has provided a reference. In that document she acknowledges that you are working hard to change and that you were very sorry for your actions. She obviously remains supportive of you. Given the strength of your relationship with your wife and children, and the difficulty she has had coping in your absence, I accept that your concern for them has made your time in custody difficult. I accept that you are well supported by family, who have visited you regularly in custody.
30. You have also written a letter to the court and speak of being well aware of the consequences for your behaviour on others, which does include your wife, children and, importantly, your victims. You made clear expressions of remorse and expressed an intention to distance yourself from bad company and illegal activity. You expressed a desire to set a good example for your children. Whilst in general terms such letters are self-serving and of limited weight, I encourage you to maintain the insights and resolve you express.
31. You have a close affiliation with the Aboriginal community and have taken part in activities for the indigenous community whilst in custody, including the Koori men's program, Koori cultural program and Koori art program. A number of artworks you have completed whilst in custody were tendered. You are clearly skilled in this field.
32. In addition, whilst in custody, you have found employment and have undertaken multiple courses. You have used your time wisely and this augers well for your future prospects. This has also been your first time in a custodial setting and I accept that the sanction and deterrent effect of this experience thus far has a future role to play. Whilst your offending is extremely serious, you do have limited history and are highly motivated to put these matters behind you. I accept your prospects for rehabilitation remain live.
33. I understand application has been made for a forensic sample to be taken from you and that this is not opposed. I make that order. I am satisfied the seriousness of the offending warrants it, note that it is not opposed, and in my view it is in the public interest that the order be made. That involves taking a sample from the inside of your cheek cells. It then goes on a DNA database. I am obliged to warn you that if you do not participate in that process, reasonable force can be used and a blood sample can be taken.
34. The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.
35. I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act, where relevant, to your case and also the principles of both totality and proportionality. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, noting there is limited, if any, information on current sentencing practices for the charge of carry on a business of dealing in firearms and the charge of discharge firearm.
36. The discharge firearm with reckless disregard for the safety of any person offence is relatively new. It was introduced as a response to an increase in what was described as drive-by shootings and therefore specifically relates to the discharge of a firearm at a vehicle, vessel, aircraft or premises. Before it came into existence around May 2018, your actions of 27 October 2018, were likely to have been charged as reckless conduct endangering life or serious injury, which themselves carry a maximum penalties of 10 and five years imprisonment.
37. I have had regard to recent cases that deal with charges of reckless conduct. They include Zogheib v The Queen [2015] VSCA 334, DPP v Grayoski [2018] VSCA 332, R v Rudd [2009] VSCA 213 and R v Bradley [2010] VSCA 70. I invited further submissions from the parties. I have had regard to those submissions. Obviously each of those cases to which I have just referred have their differences, certainly from the circumstances of your offending, and clearly in terms of the elements, reasons for sentence and maximum penalties, but they have been of some general assistance.
38. I note the Crown did provide me with a document entitled "Firearm Offences: Current Sentences Practices from May 2019" authored by the Sentencing Advisory Council, and I have had recourse to its contents.
39. In terms of sentence, in relation to the summary charge of possession of ammunition, you are convicted and fined the amount of $500.
40. In relation to Charge 1, discharge firearm, you are convicted and sentenced to four years' imprisonment which is the base sentence.
41. In relation to Charge 3, being a non-prohibited person possessing a category A or B longarm that was not registered, you are convicted and sentenced to eight months imprisonment, of which one month is cumulative on the base sentence.
42. In relation to Charge 4, being a non-prohibited person possessing a category A or B longarm that was not registered, you are also convicted and sentenced to eight months imprisonment, of which one month is cumulative on the base sentence and the other sentences imposed.
43. In relation to the related summary offence of being an unlicensed category A or B longarms firearms dealer, you are convicted and sentenced to 12 months imprisonment, of which six months is cumulative on the other sentences imposed.
44. This forms a total effective sentence of four years and eight months imprisonment.
45. I reckon 297 days as having already been served.
46. Given your limited criminal record, good work history, family supports, general insights and efforts to self-improve whilst on remand, I am satisfied that there is merit in considering a lengthy period on parole, which will assist you to transition back into the community, provide appropriate supports and at the same time protect the community. As such, I fix a period of two years and 11 months before you are eligible for parole.
47. Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total of five years and four months, with a minimum of three years and eight months before being eligible for parole.
48. Thank you. If you could remove the prisoner. Nothing arising?
49. MS MALOBABIC: No, Your Honour.
50. HER HONOUR: Thank you. If we could close the court, sine die. Thank you.