On 4 October 2016 at approximately 3:30 pm you were driving a BMW car on the Princes Highway, Hoppers Crossing, this vehicle having been stolen some four days earlier. While driving it, you pulled alongside another vehicle, beeped the car horn, and showed the driver what appeared to be a handgun. It was in fact an imitation handgun. You then overtook another vehicle, and crossed lanes to reach an exit from the freeway, causing another driver to have to slow down to avoid a collision. You then drove behind that vehicle and pointed the handgun at the vehicle. You then stopped in the middle of an intersection, waving the handgun out of the window of the BMW and forcing other vehicles to stop to avoid it. These events give rise to Charge 1 of theft of the BMW, and Charge 3 of being a prohibited person possessing an imitation firearm.[46]

Court of Appeal (Vic)|2023-10-24|Before: Taylor JA

The applicant argues that the sentence of 8 years and 6 months' imprisonment in Bruce is an 'outlier' and should not be a block to the success of his application. Further, the applicant argues that the sentence in Atkinson involved the aggravated form of the s 131A(2) offence with a higher maximum penalty and yet was 12 months less than that imposed on the applicant. The applicant also argues that there is no meaningful difference between his 'mid-range' offending and that in Diab, Doodt, Chircop and Henderson, which received sentences of 3 years and 6 months, 4 years, 15 months and 3 years and 6 months respectively. Accordingly he submits that it is reasonably arguable that his sentence is manifestly excessive.
Rather than simply categorise the applicant's offending as 'mid-range' it is more useful to look at the measures of objective seriousness of his offending.
The applicant was, with unknown others, in a stolen car that approached the target premises without headlights in the early hours of the morning. The applicant knew that Mr Mansour, a man with whom he had a grievance, and at least one other person, was present in the house. He was sentenced on the basis that he was complicit in the shooting. Two shots were fired directly at the front window of the house with a relatively flat trajectory. Some pellets made it two rooms deep into the dwelling.
Beyond those objective matters, there were factors relevant to the applicant that were absent in Atkinson, Diab, Chircop, Doodt and Henderson. In only one of those cases - Doodt - was the offender subject to a CCO at the time. Unlike the applicant, Doodt had a limited and irrelevant criminal history and realistic prospects of rehabilitation. On the other hand, the offender in Smiljanic, who received a term of 5 years and 3 months' imprisonment, was on parole at the time of the offending. Like the applicant, it could not be determined if he or his co-offender had been the shooter. And, like the applicant, he had recently served a term of imprisonment for weapons offences. In this regard, it is to be noted that the 2018 sentencing reasons of Judge Cohen concerning the applicant were before the sentencing judge. Part of the offending for which the applicant was then sentenced was summarised by her Honour as follows:

On 4 October 2016 at approximately 3:30 pm you were driving a BMW car on the Princes Highway, Hoppers Crossing, this vehicle having been stolen some four days earlier. While driving it, you pulled alongside another vehicle, beeped the car horn, and showed the driver what appeared to be a handgun. It was in fact an imitation handgun. You then overtook another vehicle, and crossed lanes to reach an exit from the freeway, causing another driver to have to slow down to avoid a collision. You then drove behind that vehicle and pointed the handgun at the vehicle. You then stopped in the middle of an intersection, waving the handgun out of the window of the BMW and forcing other vehicles to stop to avoid it. These events give rise to Charge 1 of theft of the BMW, and Charge 3 of being a prohibited person possessing an imitation firearm.[46]

There are other notable points of distinction between the applicant and the five other sentences he particularly relies upon. For example, Diab had been seriously injured as a result of the incident, had limited previous convictions, had reasonably good prospects of rehabilitation and was re-sentenced on the s 131A(1) charge after a successful conviction appeal. Chircop suffered PTSD as a result of serious trauma in his childhood and had no prior violent offending and realistic prospects of rehabilitation. The offending by Henderson was far more spontaneous and he had no prior history for violence or firearm offences.
The applicant has a significant and highly relevant criminal history. His prospects of rehabilitation are guarded.
It is clear from his careful Reasons that the sentencing judge was cognizant of all the matters urged in mitigation of sentence. It is also clear that his Honour undertook an appropriate analysis of the seriousness of the applicant's offending and considered, as far as was possible, current sentencing practices for the s 131A(1) Firearms Act offence. In all the circumstances, his Honour was required to give significant weight to both specific and general deterrence, denunciation and just punishment.
Reviewing these matters and, particularly, the survey of cases urged by the applicant, I am not persuaded that it is reasonably arguable that the sentence of 5 years and 6 months' imprisonment imposed with respect to charge 3 was wholly outside the range of options available to the judge, such that it was not reasonably open to him to arrive at the sentence imposed.

The application for leave to appeal must be refused.

[1] The maximum penalty for possessing a drug of dependence is 1 year and/or 30 penalty units if the court is satisfied, on the balance of probabilities, that the offence was not committed for any purpose related to trafficking in that drug of dependence. Otherwise, the penalty is 5 years' imprisonment and/or 400 penalty units: Drugs, Poisons and Controlled Substances Act 1981, s 73(1). Charges 6 and 7 were put on the basis of possession for personal use only: DPP v Haddara (County Court of Victoria, Judge Wischusen, 17 March 2023) [42] ('Reasons').

[18] Reasons, [46]. These were Bruce v The Queen [2022] VSCA 100 (Maxwell P and Kennedy JA) ('Bruce'); Atkinson v The Queen [2021] VSCA 127 (Priest and T Forrest JJA) ('Atkinson'); DPP v Khan [2022] VCC 2221 ('Khan'); DPP v Whyte [2018] VCC 1465 ('Whyte'); DPP v Taylor [2019] VCC 2220 ('Taylor'); DPP v Doodt [2021] VCC 1584 ('Doodt') and DPP v Smiljanic [2020] VCC 495 ('Smiljanic').

[20] The authorities are considered further below.

[21] Victoria, Parliamentary Debates, Legislative Assembly, 21 September 2017, 2964 (Lisa Neville, Minister for Police).

[22] S 131A(4) of the Firearms Act provides that a 'serious indictable offence' for the purposes of s 131A(2) has the same meaning as defined in s 325(6) of the Crimes Act 1958, namely, 'an indictable offence which, by virtue of any enactment, is punishable on first conviction with imprisonment for life or for a term of 5 years or more.'

[23] Victoria, Parliamentary Debates, Legislative Assembly, 21 September 2017, 2965 (Lisa Neville, Minister for Police).

[24] He was also a 'prohibited person' because less than five years had passed since he had been subject to a CCO with a supervision element: Atkinson [2021] VSCA 127, [7] (Priest and T Forrest JJA).

[25] Stalking (two charges); damaging property; attempted arson; prohibited person in possession of firearm and possessing a drug of dependence.

[26] Atkinson [2021] VSCA 127, [39] (Priest and T Forrest JJA).

[27] The others were: trafficking in a large commercial quantity of drugs; possessing firearms in contravention of a firearm prohibition order; negligently dealing with proceeds of crime; arson; possession of a traffickable quantity of unregistered firearms; trafficking in a drug of dependence; attempting to obtain property by deception; and possession of a drug of dependence.

[28] Commit indictable offence whilst on bail; possess cartridge ammunition without licence; make false report to police; possess controlled weapon without excuse; and drive whilst authorisation suspended.

[29] Bruce [2022] VSCA 100, [55].

[32] [2023] VSCA 112 (Beach, Niall and Kaye JJA) ('Diab').

[33] See Diab v The King [2023] VSCA 107 (Beach, Niall and Kaye JJA).

[34] The other indictable offences were discharging a firearm reckless to the safety of a police officer; possession of a general category handgun without a licence; and handling stolen goods. There was also a single related summary offence (failing to store cartridge ammunition for Category A or B longarm in manner provided).

[35] Diab [2023] VSCA 112, [9]-[18] (Beach, Niall and Kaye JJA).

[36] Whyte concerns offences of conduct endangering persons and use of firearm by prohibited person and is excluded from this survey.

[37] The other offences were being a non-prohibited person possessing a longarm that was unregistered (two charges) and two related summary offences of possession of ammunition without a licence and being an unlicensed Category A or B longarms firearms dealer.

[38] The other charge was prohibited person in possession of a firearm.

[39] The offender was also fined $100 for the related summary offence of possessing cartridge ammunition.

[40] [2021] VCC 652 ('Henderson').

[41] The other offences were trafficking in a drug of dependence and being a prohibited person in possession of a firearm.

[42] [2022] VCC 1902 ('Chircop').

[43] Lieu v The Queen (2016) 263 A Crim R 173, 186 [46] (Beach and Kaye JJA); [2016] VSCA 277.

[44] DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2015) 262 CLR 428, 445 [51] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41, quoting DPP v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 196 [30] (Nettle JA, Ashley JA agreeing at 206 [71] Redlich JA agreeing at 206 [72]); [2007] VSCA 129.

[45] Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483, 494-5 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

[46] DPP v Haddara [2018] VCC 1597, [10] (Judge Cohen).

Poisons and Controlled Substances Act 1981

Haddara v The King [2023] VSCA 250 (24 October 2023)

Bruce v The Queen [2022] VSCA 100; Atkinson v The Queen [2021] VSCA 127; Diab v The King (No 2) [2023] VSCA 112, considered - DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428; Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483, referred to.

Haddara v The King [2023] VSCA 250

At a glance

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Judgment (31 paragraphs)

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Legislation Cited (1)

Cases Cited (5)

Haddara v The King [2023] VSCA 250 (24 October 2023)