1. The respondent pointed out that the s 131A(1) offence had been introduced by Parliament in 2018 in response to an increase in drive-by shootings.[17] In the second reading speech in respect of the bill that introduced the offence, the Minister for Police explained that the high maximum penalty (15 years' imprisonment for the s131A(1) offence) recognised the seriousness and potentially lethal consequences of firearm use, particularly the dangers to the community posed by the firing or carrying of a loaded firearm.[18]
2. Accepting that the judge gave weight to all matters put in mitigation, the respondent emphasised that the judge was also required to, and did, consider the gravity of the offending, the applicant's prior convictions and his guarded prospects of rehabilitation. The respondent noted that the judge had agreed with the prosecutor's submission that the applicant's involvement in the shooting represented 'serious criminal conduct'.[19] In oral submissions, the respondent emphasised all of the factors that the judge had identified as contributing to that level of seriousness.[20] Ultimately, the respondent urged this Court to take the approach that Taylor JA preferred in the Refusal Reasons. In those reasons, her Honour preferred to evaluate the objective seriousness of the offending by reference to certain measures of aggravated offending. Of the eight measures identified by Taylor JA, the respondent submitted that the applicant's offending 'ticks seven of the eight boxes'.
3. As well as pointing to the serious nature of the offending, the respondent argued that: the applicant's criminal history was troubling; he had previously received the benefit of a full range of sentencing dispositions and yet had continued to offend; he was on a community corrections order at the time of this offending; and, in view of those matters, the judge appropriately concluded that his prospects of rehabilitation were 'guarded'.
4. In response to the applicant's arguments concerning lower sentences imposed in other cases, the respondent submitted that current sentencing practices - that is, sentences imposed in comparable cases - are but one factor to be considered as part of the sentencing judge's instinctive synthesis.[21] Moreover, the respondent argued, the s 131A(1) offence is new, such that sentencing practices are still emerging and are of limited help.
5. In oral submissions, the respondent expanded on this latter point. With reference to specific cases to which the applicant referred, the respondent argued that any disparity between sentences imposed in the 'comparable' cases and the sentence imposed on the applicant could be explained by:

(a) significant differences in the personal circumstances of the relevant offender - in this respect the respondent described, by way of comparison, relevant personal circumstances of the offender in the comparable cases: for example, those in DPP v Taylor[22] (limited prior convictions, traumatic upbringing); DPP v Khan[23] (limited criminal history, significant mitigatory matters); DPP v Henderson[24] (personality disorder); DPP v Fiscalini[25] (19 year old offender, reliance on Bugmy[26] and Verdins[27] principles, stabbed while in custody); and DPP v Diab (No 2)[28] (seriously injured whilst offending, limited prior convictions, good rehabilitation prospects);

(b) differences in the objective seriousness of the offending; for example, in Diab (No 2) where the offender fired his weapon under a perceived, albeit incorrect, belief that he was under threat; and/or

(c) the judge moderating the sentence for the s 131A(1) offence, to give effect to totality, where a larger sentence was imposed for another offence that was the base offence, as in Atkinson.[29]

1. The respondent also referred to the analysis undertaken by Taylor JA of earlier sentences (including those referred to so far) to discern what lessons may be learned in relation to current sentencing practices for the s 131A(1) offence.[30] In addition to those cases referred to by Taylor JA, the respondent provided a further list, namely DPP v Black;[31] DPP v Fiscalini;[32] DPP v Alessawi;[33] and DPP v Braine.[34] The respondent argued that an analysis of all the cases reinforces the conclusion reached by Taylor JA that sentences of imprisonment for this offence have ranged broadly, between 15 months at the lowest and 8 years and 6 months at the highest. According to the respondent, an analysis of the cases shows that a mid-range or median sentence seems to fall between about four to six years.
2. Addressing some specific submissions made by the applicant, the respondent argued that little distinction can be drawn between an offender who knows positively the location of occupants at the time of shooting, and an offender who shoots at the front room of a property known to be occupied (especially when the room was in fact occupied by three adults awake at the time). Responding to another point, the respondent argued that it was not particularly significant that the prosecution could not prove that the applicant was the actual shooter, as it was the applicant who had the grievance toward an occupant, and that grievance appeared to be the motivation for the shooting. In Bruce, for instance, the offender (who was sentenced for the s 131A(1) offence to 8 years and 6 months' imprisonment) was not present at the shooting but had directed others to do the shooting on his behalf.
3. Emphasising that manifest excess is a stringent test that is difficult to satisfy, the respondent submitted that the judge had regard to all relevant mitigating and aggravating matters and imposed a sentence on charge 3 that reflected the gravity of the offending whilst giving effect to relevant sentencing principles.

1. The ground of manifest excess will only succeed if it can be shown that the sentence was wholly outside the range of sentencing options available to the sentencing judge - or, as expressed by Hayne J in AB, that it was too heavy and lay outside the permissible range of dispositions. That is, the applicant must show that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. It has been described as a stringent requirement, difficult to satisfy.[35]
2. Parliament indicated its view of the seriousness of the s 131A(1) offence by setting a maximum penalty of 15 years' imprisonment.
3. The sentencing judge succinctly summarised the essential characteristics of the applicant's offending in these terms:

... this was apparently a planned and carefully executed attack on a residence at which a person with whom you then held a grievance was present. It involved the use of a stolen vehicle, an attempt at a stealthy approach without lights in the small hours of the morning, and the discharge of two rounds of buckshot at the glass-fronted residence where the three people present in the front room, as a result only of good fortune, were not struck or injured. The offence was committed whilst you were subject to the conditions of a recently imposed community corrections order and at a time when you were a person prohibited from possession of a firearm for any purpose.[36]

1. In evaluating the seriousness of the applicant's offending we readily adopt the approach taken by Taylor JA, by looking at specific considerations by which the objective seriousness of the offending may be assessed. We recognize that the factors identified by her Honour are neither a statutory formulation of considerations, nor an exclusive list of factors. Nonetheless, we agree that they provide a useful tool for analysis. Her Honour listed the following measures:

(a) The degree of premeditation and planning involved in the shooting, including the use of stolen or hired vehicles, the sourcing of a weapon and a 'stealth' approach to the target.

(b) The nature of the firearm used. Use of a semi-automatic or automatic high powered firearm will be more serious than a lower calibre weapon.

(c) The location of the target. If a house or vehicle is in a built-up area the risk to safety increases.

(d) Relatedly, the time of day of the shooting. The discharge of a firearm into a house in the early hours of the morning is a risk to sleeping occupants. The discharge of a firearm in broad daylight in a busy area is an equally serious risk.

(e) Knowledge by the offender that the targeted premises or vehicle is in fact occupied.

(f) The motivation for the shooting.

(g) The aim of the firearm and the degree to which bullets or pellets penetrate the target.

(h) The role played by the offender in the shooting.

(i) Whether the risk eventuated by any person being injured.[37]

1. As the sentencing judge correctly observed, the applicant's offending involved premeditation and planning given that it featured the use of a stolen vehicle and a stealthy approach to the residence where 'Mel' was known to be present. Buckshot - designed to spread and thus impact a wide area - was fired from a 12-gauge shotgun, a powerful weapon. Two shots were fired into a residential house in a suburban neighbourhood. The shots were fired in the early hours of the morning, a feature which both indicates stealth and produces a risk to sleeping occupants. The applicant's text message exchanges with an occupant before the offending demonstrates his knowledge that the house would be occupied and also reveals the motivation for the shooting. The shots were aimed at the house (not above it) and, indeed, buckshot penetrated into several rooms of the house. Because the applicant was the person who had the grievance with Mel, and was present in the car, it is clear he played an active role in the shooting.
2. We accept the respondent's argument that, of the list of measures or features set out above, seven were present in the applicant's offending. The only feature missing was the last; that is, no person was actually injured. All of this supports the judge's conclusion that the applicant's offending represented 'serious criminal conduct'.
3. Notwithstanding the applicant's plea of guilty and the other mitigating factors that the applicant identified and the judge took into account, we are simply unable to conclude that a sentence of 5 years and 6 months - a little over a third of the maximum penalty - was either too heavy or outside the permissible range of sentences available to the sentencing judge. Indeed, we consider that it lies comfortably within that range.
4. With respect to current sentencing practices for this offence, it is difficult to improve upon the analysis of Taylor JA in her Refusal Reasons. We do not intend to repeat the exercise her Honour performed. It is enough to set out and endorse her general conclusion and the principles that she relied upon:

This survey of the relevant authorities and sentences reveals a number of matters. First, that the comparison of offending behaviour with other examples of the same or a similar offence is always of constrained utility given the number of variables in both objective behaviour and subjective considerations. Nonetheless such an exercise may 'assist by revealing a possible range or pattern of previous sentences'.[38] That said, the outer limits of the appropriate sentencing range are not 'capped and collared by the highest and lowest sentences for similar offences hitherto imposed'[39] and what remains is a requirement for 'individualised justice'.[40] Second, to the extent sentencing practices do reveal a pattern, its form and dimensions will be harder to discern where there are fewer sentences to compare.[41]

1. Her Honour went on to observe that the sentence range of between 15 months and 8 years and 6 months was revealed by a 'sparsely populated pattern of offending', and that the disparity was 'largely explained by differences in the personal circumstances of each offender and the consequential different weight placed upon various sentencing considerations'.[42] We agree with that analysis. The additional list of cases produced by the respondent on the hearing of the application for leave to appeal provides further examples of the range of sentences, and of the role of individual considerations, both as to the offence and the offender, in explaining those different sentences.
2. We do not accept that the particular feature which the applicant urged us to view as an important point of distinction between his case and other cases - namely, the offender's degree of certainty as to whether any person was in the line of fire - is of particular assistance to him in this case. An element of the s 131A(1) offence, to which he pleaded guilty, is that he had reckless disregard for the safety of persons at the time of the shooting. Whatever degree of consciousness is to be attributed to the word 'reckless' in this particular collection of words - which we do not need to decide - there is little relevant point of distinction between the firing of buckshot from a high-powered weapon into the glass front of a house known to be occupied, and a case in which a shooter fires a gun at a door knowing that a person is behind it. In both cases, it is plainly foreseeable that a person may be harmed. In this case, the fact that nobody was injured was not the product of precaution, or knowledge that nobody could be injured, but pure good fortune.
3. We agree with the statement made in Atkinson that it is 'an inherently serious offence to discharge a firearm into premises or vehicles with a reckless disregard for the safety of others'.[43] Whether to settle a grievance, serve as a warning, vent anger, or as a sheer act of bravado, recourse to firearms to shoot at vehicles or premises cannot be tolerated in a civilised society. Doing so exhibits a mindset of lawlessness that is dangerous and frightening to the community generally. As well, it is likely to beget reprisal and escalating violence.
4. Parliament evidently perceived that such shootings were increasing and needed to be met with stern deterrence. Courts would not be heeding Parliament's intention, or respecting the legitimate expectation of members of the community to feel safe within their homes, if they did not give strong prominence to the sentencing purposes of general deterrence, denunciation and just punishment when sentencing those who choose to use firearms in this way.
5. In short, it is important that sentences, in cases such as this, be sufficient to constitute a clear message that any person, who is minded to engage in the form of dangerous conduct committed by the applicant, will, on apprehension, lose his or her right to be at liberty in society for a substantial period of time. The advantage they seek to obtain, acting unlawfully, will, so far as the sentencing system can justly achieve, be met with a corresponding disadvantage by way of penalty. Further, it is necessary that the sentence imposed, in such cases, unequivocally denounce the kind of conduct engaged in by the applicant as being entirely alien to the basic principle of a peaceful, law abiding community.
6. In the applicant's case there must be added the purpose of specific deterrence, given his lengthy criminal history and the fact that, at the time of offending, he was a person prohibited from possessing a firearm and was subject to the conditions of a community corrections order.
7. The application for leave to appeal must be refused.

[1] Contrary to s 74 of the Crimes Act 1958.

[2] Contrary to s 131A(1) of the Firearms Act 1996.

[3] Contrary to s 5 of the Firearms Act 1996.

[4] Contrary to s 88 of the Crimes Act 1958.

[5] Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[6] DPP v Haddara (Unreported, County Court of Victoria, Judge Wischusen, 17 March 2023) ('Sentencing Reasons').

[7] Haddara v The King [2023] VSCA 250 ('Refusal Reasons').

[8] Criminal Procedure Act 2009, s 315(2).

[10] 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: Sentencing Reasons, [42].

[11] Citing AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, 160 [130] (Hayne J); [1999] HCA 46 ('AB').

[12] [2023] VSCA 107 and Diab v The King (No 2) [2023] VSCA 112.

[13] [2021] VSCA 127 (charges 6, 7 and 8) ('Atkinson').

[14] [2020] VCC 1321.

[15] Bruce v The Queen [2022] VSCA 100, [7], [55] (Maxwell P and Kennedy JA) ('Bruce').

[16] DPP v Taylor [2019] VCC 2220.

[17] Victoria, Parliamentary Debates, Legislative Assembly, 21 September 2017, 2964-5 (Lisa Neville, Minister for Police).

[21] DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2015) 262 CLR 428, 447-8 [59] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41; citing R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39.

[22] [2019] VCC 2220.

[23] [2022] VCC 2221.

[24] [2021] VCC 652.

[25] [2021] VCC 1523.

[26] Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

[27] R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

[28] [2023] VSCA 112 ('Diab (No 2)').

[29] [2021] VSCA 127.

[31] [2019] VCC 2089.

[32] [2021] VCC 1523.

[33] [2023] VCC 1835.

[34] [2022] VCC 798.

[35] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

[36] Sentencing Reasons, [47] (emphasis added).

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

[39] 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.

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

[43] [2021] VSCA 127, [39] (Priest and T Forrest JJA).