R v Winmar [2025] VSC 742

1 In April 2023, Adam Winmar did something that will haunt him for the rest of his days. He attempted to hide his crudely homemade - and loaded - pipe‑gun from his young family. However, instead of putting it somewhere impenetrably secure, he secreted it in a cavity inside the lounge‑room couch at their home in Shepparton. While his previous attempts to fire the gun in the usual way had all failed, it was still a profoundly stupid thing to do. For any loaded gun is to be treated as potentially dangerous, and especially so when young children might get their hands on it.

2 And, as if fate cruelly desired to teach Mr Winmar this most basic of lessons, a little later, his four‑year‑old daughter AB found the gun, with her six‑year‑old sister CD in tow. But things would get better before they got far worse. For, happily, his partner, the children's mother, Kiara Ferguson, came upon AB, snatched the gun from her, and immediately marched to the toilet, where Mr Winmar was sitting with the door open. In a fit of pique, she said something like, "What have I told you about this?" Fair enough. And disaster would have been averted if events stopped right there.

3 But they didn't. For then, inexplicably, Ms Ferguson deliberately threw, lobbed or dropped the gun towards Mr Winmar. Either way, the gun hit the tiled floor and discharged in consequence. Freakishly, at least some of the shot struck Ms Ferguson in the cheek below her left eye. She fell to the floor, mortally wounded. Despite Mr Winmar's immediate and desperate attempts at CPR under instruction from a triple‑zero operator, he was unable to revive her. Tragically, she died there and then. She was only twenty‑seven, and was pregnant with the couple's third child.

4 Subsequent expert testing showed that, consistently with Mr Winmar's experience, the gun would not fire in the usual way as designed. However, it would fire if held vertically by the muzzle and dropped onto its bolt from height or if the bolt were tapped with a hammer.

5 Arising out of these events, Mr Winmar was charged with being a prohibited person in possession of a firearm.[1] Ten months later, police added a charge of manslaughter (by criminal negligence).[2] Only recently, the Crown abandoned manslaughter, as it was hopeless, and indicted him instead on reckless conduct endangering life.[3]

6 At a sentence indication hearing last week,[4] I indicated that, if Mr Winmar pleaded guilty to both the firearm charge and the reckless conduct charge, I would impose a maximum total effective sentence of three months' imprisonment combined with a community correction order ("CCO") for twelve months, with special conditions.[5] He pleaded guilty. I then heard a formal opening from the Crown, heartfelt victim impact statements from some of Ms Ferguson's family, and a plea in mitigation.

7 It now falls to me to impose sentence for these offences. For the reasons I am about to give in more detail, I have determined to sentence Mr Winmar as I previously indicated - namely, to three months' imprisonment combined with a CCO for twelve months, with some special conditions.

8 Before turning to the circumstances of and surrounding the offending in more detail, it is necessary to record the somewhat unusual procedural history of this matter, commencing with an earlier Koori Court hearing.

9 As I indicated a moment ago, initially, Mr Winmar was charged only with the firearm offence. On 8 December 2023, that charge went to the Koori Court of the Magistrates' Court as a proposed plea of guilty. While the magistrate indicated that she would determine jurisdiction after hearing more about the matter,[6] her Honour then conducted the case as if it were a plea hearing - or, as it is called in the Koori Court, a "sentencing conversation".

10 This involved, among other things, the police prosecutor reading a summary of the circumstances of the offence (which was similar to the prosecution opening I have received on the current plea hearing). Further, the magistrate heard members of Ms Ferguson's family read their victim impact statements (which were the same ones as those read by the prosecutor on the current plea hearing). Her Honour also heard from a case manager at an Aboriginal community organisation, who told her of the counselling in which Mr Winmar had been participating since June. And his counsel put a plea in mitigation.

11 Next, the magistrate spoke directly to Mr Winmar about his criminal history, his breaches of CCOs, and his drug use. He indicated that he had been "clean" for about six or seven months.

12 The magistrate then invited two elders from Mr Winmar's community to speak to him. They spoke about his conduct, both past and present, and about the dire consequences for others and him. They shamed him for these things, and told him he had let his people down. One of the elders expressed the hope that, by their speaking to him, he would listen, that he was learning a lesson, and that he would think about what he had done.

13 The same elder then asked Mr Winmar to respond. He did. He agreed that he should not have made the gun or had it in the house, especially with children around. He acknowledged that he had "ruined families, both families", and he accepted that he would have the rest of his life to think about that. He also read the following statement from some notes he had prepared:

Since my partner Kiara has passed away, I have found myself in a world of hurt and pain ... I will never ever get the chance to be with her, with the love of my life, and raise our two beautiful daughters ... . I have found myself unable to function in this life ... I normally spend time by myself being depressed knowing that I'll never hear her voice or see her again, and that breaks me down. All I do is cry and talk to her, the air, wishing that I could hear her voice again. ... I know what's happened is bad. I wish I never, never had the gun. I would give anything for it to be different. But this is all I got written down. I couldn't write no more.

14 The magistrate went on to hear submissions from the prosecutor and defence counsel, which I need not rehearse here.

15 Her Honour ordered that there be an assessment for a CCO, and she adjourned the matter part‑heard until 16 February 2024, at which time she would determine the application for summary jurisdiction and (if necessary) sentence.

16 In the interim, however, on 3 February 2024, police added a charge of manslaughter (by criminal negligence) arising out of essentially the same facts that had been put before the Koori Court.

17 At the return of the Koori Court hearing two weeks later, on 16 February, Mr Lavery, who was Mr Winmar's new counsel, submitted that the magistrate should now sentence his client on the firearm charge. In his submission, this was necessary because the steps she had taken - including hearing a sentencing conversation and ordering a CCO assessment - were those that would usually follow a finding of jurisdiction to hear the charge.

18 The magistrate disagreed, explaining that she took those steps in order to inform her decision on whether to grant or refuse the application for summary jurisdiction, and that Mr Winmar's previous counsel had consented to that course. Her Honour added that she had already halted her request for a CCO assessment.

19 Further, the magistrate ultimately said that she rejected the application for summary jurisdiction, and gave reasons for her decision.

20 Her Honour then adjourned the firearms charge to join the manslaughter charge in the committal stream of the Magistrates' Court.

Committal by straight hand‑up brief to Supreme Court on both charges

21 On 25 June 2024, via the straight hand‑up brief procedure, Mr Winmar was committed for trial in this Court on the firearm and manslaughter charges. He pleaded not guilty to both charges (although there was never any dispute that he would plead guilty to the firearm charge[7]).

Mr Winmar seeks a permanent stay of the manslaughter charge

22 On 16 December 2024, the matter came before me as an application by Mr Winmar for an order permanently staying the prosecution of manslaughter as an abuse of this Court's process on the basis that that charge was foredoomed to fail on the element of causation.[8]

23 On 21 February 2025, in an interim ruling, I indicated that, if there were no conclusion open other than Ms Ferguson deliberately threw, lobbed or dropped the gun onto the toilet floor, then it was likely that I would be of the view that that fatal act must have broken the chain of causation (i.e., was a novus actus interveniens) between Mr Winmar's negligent storage of the gun (a causa sine qua non) and its discharge, which was the immediate cause of her death (the causa causans).[9]

24 However, at that time, the Crown case was unclear as to whether Ms Ferguson's fatal act was deliberate or accidental. Accordingly, I adjourned the matter in order that that issue might be clarified, so that the Crown might reconsider its position on manslaughter, and so that, if that charge were persisted with, the Crown could file an indictment and a summary of prosecution opening and the defence could file a defence response.[10]

25 Subsequently, in a summary of prosecution opening filed on 26 March 2025, the Crown clarified that its case was that Ms Ferguson's act of throwing, lobbing or dropping the gun was indeed deliberate but that manslaughter was still pressed.[11] In his defence response filed on 17 April 2025, Mr Winmar indicated that causation remained a live issue on the manslaughter charge.[12]

Crown withdraws manslaughter and substitutes reckless conduct charges

26 However, at a mention on 24 October 2025, the Crown foreshadowed that it would be abandoning manslaughter and filing a new indictment charging reckless conduct endangering life and, in the alternative, reckless conduct endangering serious injury.[13] At that stage, the trial was due to commence on 10 November. On 31 October, the Crown filed the new indictment and an amended summary of prosecution opening, and, five days after that, Mr Winmar filed a defence response.[14]

Application to remit case to Magistrates' Court

27 After I heard pre‑trial argument and made some rulings on the admissibility of evidence,[15] Mr Lavery, who appeared with Ms Byrt for Mr Winmar, made an application to transfer the hearing of the charges to the Magistrates' Court.[16] In the course of that application, Mr Lavery mentioned the possibility that, if it were remitted, the matter might resolve in that court at a contest mention.

Sentence indication; pleas of guilty; plea hearing

28 It was in those circumstances that I raised the possibility of giving a sentence indication in this Court. After seeking instructions, Mr Lavery no longer pursued the remittal application and instead made an application for a sentence indication on the charge of reckless conduct endangering life and the firearm charge. Mr Shaw, who appeared with Mr White for the Crown, supported that application.

29 And so it was that, last week, I heard a sentence indication and gave the indication mentioned earlier; that Mr Winmar said he would take up that indication; that the Crown filed a plea indictment; that, upon arraignment, Mr Winmar pleaded guilty to both charges; and that I ordered that he be assessed for a CCO. At the subsequent plea hearing, I heard effectively the same opening as was before me on the sentence indication (which was similar to the summary in the Koori Court), the very same victim impact statements as had been read in the Koori Court, a plea in mitigation, and submissions on various matters. I then adjourned the matter until today for sentence.[17]

Summary of circumstances of and surrounding offending

30 I turn now to a more detailed summary of the circumstances of and surrounding Mr Winmar's offending, commencing with some background matters.

31 At the time of the offending, which was Saturday 1 April 2023, Mr Winmar lived in a single‑storey house in Shepparton with his partner Ms Ferguson and their two young daughters. Ms Ferguson and Mr Winmar had been in a relationship since they were about seventeen and eighteen, respectively.

32 Mr Winmar made his own pipe‑gun for the protection of his family and himself. As I shall explain later, it is likely that he was paranoid about the need for protection as a result of his longer‑term use of methamphetamines.

33 The gun was crude in design and build, and it took a twelve‑gauge shotgun cartridge. He had tried to fire the gun previously, but without success.

34 I should add that the reason Mr Winmar was a prohibited person for the purposes of the firearm offence is that he had been subject to a family violence intervention order ("FVIO") in the preceding five years.[18] In particular, in September 2019, that FVIO was made for the protection of Ms Ferguson and the two children. The order expired in September 2021.

Mr Winmar secretes loaded gun inside couch, but AB finds it

35 Earlier on the day of the offending, when he and his family were on an outing, Mr Winmar had the gun in his possession. It is not clear when he loaded it, but, given subsequent events, he must have done so at some point.

36 After the outing, Mr Winmar and his family returned to their home at 4:38 p.m. Given that Mr Winmar rang triple‑zero at about 6:12 p.m., and that this was within seconds of the discharge, he must have secreted the gun in the cavity in the couch at some point between those two times.

37 A photo of the couch taken by police in the aftermath suggests that the cavity was covered by a cushion, which must have been removed by one of the children. Presumably, AB did this just before she found the gun. This is also consistent with AB and CD's accounts, which I shall come to shortly.

Ms Ferguson's actions upon discovery of AB with gun

38 As I said earlier, Ms Ferguson came upon AB holding the gun. Understandably, she took it from her child, immediately marched to the toilet, where Mr Winmar was sitting with the door open, and, in a fit of pique, said something like, "What have I told you about this?"

39 What is so much harder to fathom, however, is that she then deliberately threw, lobbed or dropped the gun towards him. It may be that she was so angry she did not think it through. Perhaps she believed the gun was unloaded. Perhaps she believed, consistently with Mr Winmar's experience of it, that the gun would not fire. Sadly, we will never know.[19]

40 Either way, the gun hit the tiled floor and discharged in consequence. Of all the angles at which the gun might have hit the floor, and of all directions in which the shot might have fired, in a stroke of terrible misfortune, the gun discharged in a way that at least some of that resulting shot went in Ms Ferguson's direction and struck her in the cheek below her left eye. She fell to the floor, mortally wounded.

41 Mr Winmar immediately tried desperately to help his partner. He rang triple‑zero, and the operator talked him through CPR, which he did his best to perform. At the same time, he tried to keep their two daughters away from this grisly scene.

42 Soon afterwards, police arrived. An officer went to the toilet area inside the house, where he saw Mr Winmar kneeling over Ms Ferguson, still frantically attempting CPR. He told the officer, "I was sitting on the toilet, she went to throw it at me, it dropped on the floor, went bang and fucking hit her." The gun was on the floor next to Ms Ferguson.

43 When paramedics arrived, they could not revive Ms Ferguson. Sadly, her life ended there and then.

44 At some stage, Mr Winmar came out of the house. He was still highly distressed. He said he had been on the toilet and Ms Ferguson found the gun. He said she threw it at him, and it dropped.

45 His shocked and devastated state is manifest on the triple‑zero call and in the police body‑worn camera footage taken at the scene.

46 At about 8:00 p.m., Mr Winmar was arrested and taken to the Shepparton police station.

47 Commencing just after midnight the next morning, police conducted a formal recorded interview with him. Among other things, he said the following:

• He repeated that he had been sitting on the toilet when Ms Ferguson walked to where he was. She had the homemade firearm in her hand. She said, "What did I tell you about this?" and threw it towards him. It hit the ground and went off; she fell over; and then he jumped up to see if she was all right, and rang an ambulance straight away (ROI Q18).
• He demonstrated how he said she threw the gun, using an underarm movement (ROI Q28).
• He said she was "[m]aybe a metre, maybe not even that" away from him (ROI Q30).
• He said he did not shoot the gun (ROI Q43).
• When asked whose gun it was, he said, "It was, I dunno, mine or not ... it's just been around the house in case anything happened while we were there" (ROI Q188).
• He said he had it for protection for himself, Kiara, and the children (ROI Q189).
• He said he made the gun (ROI Q190‑191).
• When asked how you make it fire, he said, "Like, there's a pin thing sort'a, and, yeah, it hits whatever the thing is on there ... it never really worked. It fuckin' didn't work .... she threw it and it must've hit the thing. ... Like, it didn't work really, like, it wasn't really working or nothing. Like, I tried a bullet and it wouldn't work, it wouldn't fire anything, and then when Kiara dropped it, like, it went off ..." (ROI Q193‑196).
• He said he had never fired the gun before, and no one else had (ROI Q198‑199).
• He said that the last time he had the gun in his hands, it might have been loaded, it might not (ROI Q457‑458).
• He said, "But I didn't even think there was anything in it ... when Kiara chucked it. Like, I didn't even know" (ROI Q459).
• He said he didn't know when he last put a shell in it - "[p]robably, like, in the daytime or something. I dunno ... I didn't even ... think it should've been ... loaded" (ROI Q460).
• He had previously tried to fire it, probably three or four times (ROI Q463).
• He had shown Kiara how to use the gun (ROI Q467‑471).

48 Because of her tender age, police spoke to CD in a video‑recorded conversation (or a "VARE"), also on the Sunday morning, 2 April 2023. Among other things, she said the following:

• "Daddy had a gun in the house" (VARE Q28).
• "[AB] found it on the couch and ... then Mummy grabbed it" (VARE Q28).
• "So Daddy had a gun, and remember [AB] got it out of the couch? Mummy took it from her and walked to Daddy and asked, "What is this?'" (VARE Q76).
• "It was Daddy's gun and he left it in the couch" (VARE Q82).
• She agreed that AB found the gun "inside the couch", saying, "Under the cushions ... our couch ... it's a bit broken and it - you can go inside of it and stuff just from taking off the cushion. And then she did that and was looking in all the stuff that was there, and - and she found the gun. And then Mummy, she said that - and [AB] said that Mummy snatched it from her" (VARE Q91‑93).

49 AB also spoke to police in VAREs on the Sunday. Her account included the following:

• "Mum" dropped a gun (VARE#2 Q30‑31).
• "Dad gun" was kept "under the couch" (VARE#2 Q42‑45).
• "I been carrying it, and then Mum took it off me and then when Mum die" (VARE#2 Q47).

50 A forensic pathologist reported the cause of Ms Ferguson's death as "shotgun wound to the head". The pathologist also noted there was no sooting or powder tattooing associated with the wound, which was in keeping with a "pathologically distant range of fire".

51 Leading Senior Constable David Breer, an expert in ballistics, attended the scene on the evening of the incident.

52 Like the pathologist who saw Ms Ferguson after him, he did not observe any sooting, stippling or tattooing to the gunshot wound. Nor did he see any partially burned or unburned propellent around or within the wound.

53 LSC Breer described the gun as a homemade twelve‑gauge straight‑pull single‑shot pistol. It had a Phillips‑head screw to act as the firing pin (or bolt). A spring was held over the base of the screw by a nut threaded onto the screw. The gun was designed to operate by pulling back the homemade bolt and then releasing the spring so that it would cause the firing pin to strike the primer of a cartridge, thereby initiating its discharge. The gun did not have a breech face. In a normal firearm, the breech face ensures that the firing pin lines up to strike the cartridge primer.

54 In order to render the gun capable of discharge for testing purposes, LSC Breer had to disassemble and repair it. His subsequent testing of the gun (which he repeated fifty times) showed that it would not discharge by deploying its designed firing mechanism. Nor would it discharge when he struck the rear of the bolt with the palm of his hand.

55 However, he found that it would discharge if held vertically by the muzzle and dropped to the floor (and onto the bolt) from heights of 450 mm and 1,000 mm, or if tapped on the bolt lightly with a hammer.

56 LSC Breer also tested the shot spread by securing the firearm and striking the bolt lightly with a hammer. The shot spread was inconsistent. Because the gun lacked a breech face, sometimes the cartridge cases bulged, and sometimes they ruptured. Just counting the times when the cartridges ruptured, the distance between the firearm's muzzle and Ms Ferguson's wound was a minimum of 400 mm and a maximum of 1,500 mm.

57 Forensic examination determined that Mr Winmar's fingerprints, and his and Ms Ferguson's DNA profiles, were on the gun.

58 I turn now to the victim impact statements, which, as I have said, were the ones received in the Koori Court in December 2023. In particular, Mr Shaw read a joint statement from Ms Ferguson's parents Joanna Joyce and James Ferguson, and individual statements from her brother Tylar Ferguson, her half‑sister Julie Ferguson, and her half‑brother Daniel Ferguson.

59 Each of the statements is a powerful testament to the profound loss and grief Ms Ferguson's loved ones have suffered as a result of her death. All speak of how their lives have been altered adversely and immeasurably. The statements also incorporated treasured photographs of Ms Ferguson and her family. They are compelling documents.

60 However, for reasons I shall explain in a moment, I must not sentence Mr Winmar for causing the death of Ms Ferguson. This, in turn, means that I must not take into account the impact of her death on others either. Instead, I am required to make an attempt to assess the other adverse impact on Ms Ferguson's loved ones that has resulted directly from the reckless endangerment and the firearm offences.

61 It is difficult, if not impossible, to disentangle those two forms of impact, particularly when the overwhelming focus of the authors' statements is, naturally, on her death and the impact that it has had on them. That said, I think it can be reasonably assumed that Ms Ferguson's family have been significantly impacted by the fact that Mr Winmar, as a prohibited person, had a gun at all in the home, as well as the fact that his unsafe storage of the loaded gun recklessly placed, or may have placed, Ms Ferguson and the children in danger of death. And I do take that impact into account in sentencing.

62 I also wish to add this. Even if the law allowed or required me to take into account the impact of Ms Ferguson's death on her family, no sentence this Court could impose would be a reflection of the worth of her life. Less still could the sentence for the current offences ever come close to lessening her family's pain and grief. Rather, the sentence to be imposed simply reflects the many factors I am required by law to take into account, only one of which is the impact on victims, which is confined in the way I have explained in this unusual set of circumstances.

63 However, what I can, and do, say to Ms Ferguson's family - not as a judge, but just as one person to another, and as a matter of common decency - is that I acknowledge their loss, their suffering. It must be a terrible thing.

Mr Winmar not to be sentenced for causing Ms Ferguson's death

64 I turn now to the nature and gravity of the offences generally and in the particular circumstances of this case, including Mr Winmar's level of culpability for those offences.

65 At the outset, however, as I promised I would, I shall explain why it is important to understand that Mr Winmar must not be sentenced for causing Ms Ferguson's death. Nor is her death to be regarded as an aggravating feature of the offences he accepts he has committed.

66 The charge that, if proved, would have seen him criminally responsible for causing her death - manslaughter - is now gone. The charge of manslaughter was abandoned as a result of the inevitable recognition of the uncomfortable truth that Ms Ferguson's own act of deliberately throwing, lobbing or dropping the gun onto the toilet floor was the immediate cause of her death, that that act was unforeseeable, and that it had the effect of breaking the chain of causation between Mr Winmar's unsafe storage of the loaded gun and its discharge and the resulting death.

67 Instead, Mr Winmar is to be sentenced for the two offences to which he has pleaded guilty, and no others. The only sense in which Ms Ferguson's death counts against Mr Winmar is that its occurrence illustrates just how dangerous his unsafe storage of the loaded gun could be.[20]

68 I turn then to an assessment of the gravity of the reckless endangerment offence, which carries a maximum penalty of ten years' imprisonment.[21] It is an offence the seriousness of which may vary a great deal from case to case.

69 Mr Winmar's plea of guilty to this particular offence means that he accepts that he foresaw that it was probable that, in storing the gun as he did, he placed, or may have placed, his family members in danger of death.

70 Mr Shaw submitted that this was a serious instance of the offence. He relied on the following factors as indicia of that seriousness.

71 First, the endangerment was created by way of an unusual and unpredictable firearm made by Mr Winmar. Second, he loaded the gun and was reckless as to whether or not it was loaded. Third, he failed to store the gun securely, leaving it unattended in the living room of his family home, where his family were entitled to feel safe. Fourth, the endangerment was not momentary. Rather, depending on how soon after his return from the family outing that he secreted the gun in the couch, the offence could have lasted for up to around one‑and‑a‑half hours. Fifth, by his conduct, Mr Winmar endangered not only his young daughters, who were vulnerable and reliant on him for care, but also Ms Ferguson, who was pregnant at the time. Sixth, the fact that AB found the gun demonstrates that the danger created by Mr Winmar was real and not hypothetical. I accept the foregoing submissions.

72 Seventh, however, Mr Shaw also submitted that the circumstances in which Ms Ferguson died are relevant to an appreciation of the offence and the true context in which it occurred. But one difficulty with this submission - at least as I understood it - is that it seems to ignore the fact that a deliberate throwing (etc) of the gun by an adult was unforeseeable. As I said a moment ago, the only sense in which Ms Ferguson's death counts against Mr Winmar is that its occurrence illustrates how dangerous his unsafe storage of the loaded gun could be. Thus, if the gun, when loaded, were dropped in a way that the bolt struck a hard surface, it could discharge and the resulting shot could kill. If that is all Mr Shaw meant by his submission, then I accept it. If he meant something more, then I do not accept it.

73 Further, Mr Shaw submitted that Mr Winmar's moral culpability for this offence is high, for several reasons.

74 First, he submitted that it is to be inferred from Ms Ferguson's admonition of Mr Winmar - "What have I told you about this?" - that she had cautioned him previously about the existence of the gun, or at least about storing it in an unsafe way. I accept that submission. I am satisfied that she had warned him in some way, and that he should have heeded her warning.

75 Second, Mr Shaw submitted that Mr Winmar's recklessness demonstrates an element of disregard for the safety of his family, to whom he owed a duty of care. Again, I agree.

76 Third, he has prior convictions for weapons offences (albeit not for firearms) on four occasions between 2016 and 2020, and he breached the CCOs that resulted from those and other offences. While these offences were different from the present, I accept that there is additional moral culpability for both offences in having several prior convictions for possessing weapons of some description.

77 Fourth, Mr Shaw submitted that Mr Winmar's status as a prohibited person under the Firearms Act also increases his moral culpability for this offence of reckless endangerment. While this factor is of some moment in informing his moral culpability, I think it is a lesser consideration than some others.

78 Fifth, Mr Winmar said that he had consumed about ten stubbies of beer and a point of "ice" (i.e., methamphetamine) on the day of the offending. In Mr Shaw's submission, to the extent that his level of intoxication explains or bears on his recklessness, it may be considered an aggravating feature. I shall return to this point shortly.

79 For now, I note that Mr Lavery's response included the following.

80 First, he submitted that Mr Winmar's offence of reckless endangerment is an unusual instance of the offence. Often, a common feature of the offence is that it is committed with malice towards others - such as by deliberately driving a car or firing a gun at or near another or others in order to scare, endanger or even harm them. Plainly, this is not one of those cases. I accept that Mr Winmar did not intend to frighten, harm or endanger anyone in his family. But he did recklessly endanger them.

81 Second, Mr Lavery submitted that the offence is not aggravated by his drug or alcohol use. In his submission, it is not open to determine either Mr Winmar's level of intoxication or whether it contributed to his recklessness. Mr Lavery also made it clear that he did not rely on intoxication as a mitigating factor either. Rather, in his submission, Mr Winmar's possible intoxication is a neutral factor. I shall return to this issue in a moment.

82 Third, Mr Lavery submitted that, in view of Mr Winmar's deprived early life (including exposure to drug use as a child), his related descent into ice use, and the resulting drug‑induced paranoia that convinced him of the need for a gun for protection, the principles in Bugmy v The Queen[22] have some application in reducing his moral culpability for both offences. Mr Shaw accepted that that principle has modest application to Mr Winmar, but that the same aspect of his makeup also increases the need for community protection. As I shall explain in more detail when addressing the mitigating factors, I accept that Mr Winmar's moral culpability for his offending is reduced for the reasons urged by Mr Lavery, albeit only modestly so, but that, because of the extra‑curial punishment he has suffered, I do not accept that the same considerations increase the need for community protection.

83 Weighing all of the foregoing matters, I accept that this instance of reckless conduct endangering life is a serious offence, albeit not quite as serious as Mr Shaw urged me to accept.

84 To be sure, the fact that, by his idiotic unsafe storage of the loaded gun, Mr Winmar recklessly endangered the lives of his family makes it a serious offence, as do several of the other matters urged by Mr Shaw.

85 However, I also accept that there is a qualitative difference between, on the one hand, actively and knowingly engaging in the immediate and dynamic type of dangerous conduct more commonly prosecuted as reckless conduct endangering life and, on the other, the state of affairs that resulted from secreting a potentially dangerous weapon (a loaded gun) in a place where, for the danger to come to pass in any meaningful way, another person must at least mishandle the gun in a particular manner or hit its bolt with something hard.

86 That said, commonsense says that a member of Mr Winmar's household, especially a very young child who might be playing in the lounge, may well find the gun inside the couch. And, alarmingly, that is precisely what happened. While we do not know whether AB handled the gun in a way that potentiated its danger to her, her sister or her mother, once she had hold of it, that was a live possibility. Perish the thought.

87 However, I also accept Mr Lavery's submission that Mr Winmar's intoxication, such as it might have been, neither aggravates nor mitigates his offence. It might have been different if, by his intoxicated handling of the gun, Mr Winmar had recklessly caused it to discharge and thereby endanger another. But that is not this case. While it is possible that Mr Winmar's intoxication explains why he was not sure that the gun was loaded or why he chose such a stupid hiding spot, on the evidence, I am simply not satisfied beyond reasonable doubt that his intoxication contributed to that uncertainty or to his unsafe storage of the gun in the couch.

88 Further, I accept Mr Lavery's submission that the objective gravity of the offence and Mr Winmar's moral culpability for it are lessened to some extent by the absence of any intention to scare, harm or endanger his family, as well as by the presence of the Bugmy considerations I shall address later.

89 Overall, then, I accept that this is a serious offence attended by a degree of moral culpability. However, I consider that neither the objective gravity of the offence nor Mr Winmar's moral culpability for it is at the higher end of the spectrum. Rather, it is less serious than other more knowing, more dangerous and more culpable instances of the offence commonly seen in practice.

90 I turn now to an assessment of the gravity of the firearm offence, which also carries a maximum penalty of ten years' imprisonment.[23] This too is an offence that can vary substantially in its level of seriousness.

91 Mr Winmar's plea of guilty to the firearm charge means that he accepts that, as a prohibited person, he was not entitled to be in possession of a firearm at all.

92 Mr Shaw submitted that many of the same factors informing the gravity of the endangerment offence were also relevant to the gravity of the firearm offence. They included the following.

93 First, Mr Winmar made the gun. Second, it was unusual and unpredictable. Third, it was loaded. Fourth, Mr Winmar was in possession of the gun in the home earlier in the day, and also when he went with his family on the outing. Fifth, the gun was not stored securely. Sixth, Mr Winmar did not know where he had stored the firearm. Seventh, he did not know whether or not the firearm was loaded.

94 As for Mr Winmar's moral culpability for this offence, Mr Shaw also relied on much the same matters as he relied on in respect of the endangerment offence.

95 To the extent that they were relevant, when addressing the gravity of the firearm offence, Mr Lavery also relied on his submissions vis‑à‑vis the endangerment offence, and in particular his submission as to the applicability of Bugmy considerations in reducing Mr Winmar's moral culpability.

96 For the reasons urged by Mr Shaw, I consider that the firearm offence is also a serious offence, albeit moderated a bit by the Bugmy considerations. Further, it is not as serious as it would be had it been associated with other more serious offences, such as armed robbery, home invasion or deliberately shooting at or near another. While I consider the firearm offence to be less serious than the reckless endangerment, it is still a relatively serious offence in its own right. As a prohibited person, Mr Winmar should not have any gun at all, let alone a loaded homemade gun in the home he shared with his partner and their young children.

97 Finally, I note that, under this branch of the discussion on the plea, Mr Shaw submitted that, because of the substantial overlap between the behaviour giving rise to the two offences, I must be astute to avoid double punishment and consider totality when sentencing for these offences. Mr Lavery agreed. So do I.

98 Next, and before addressing the mitigating factors, I turn to Mr Winmar's personal circumstances, commencing with his family and early life.

99 He was born in Shepparton in 1995, and is now aged 30. He has an older sister, an identical twin brother, and younger fraternal twin sisters. He also has a large number of paternal half‑siblings.

100 His parents were separated when he was born. He was raised mostly by his mother. His father died in May 2022.

101 His mother was an alcoholic throughout his upbringing. Often, she would be asleep or passed out when he returned home from school. As a child, Mr Winmar was aware that his mother had a problem only with alcohol, but in hindsight he recalls exposure to illicit drug use in the home as well. He also witnessed a deal of violence, as some of his mother's partners were violent to her.

102 He was transient from the age of twelve or thirteen, taking off from home for extended periods of time, smoking and drinking with friends before returning to his mother's home.

103 At fourteen, he lived with his father for some months after his father's baby passed away following a premature birth. He supported his father through his grief before returning to his mother's home.

104 At sixteen, Mr Winmar's maternal uncle passed away, which resulted in a great rift in his family. While he did not know of the exact circumstances of his uncle's passing or the family rift, he believed it had a major impact on his life. At that time, Mr Winmar's mother returned to Western Australia for some months, which is her original home.

105 As for his formal education, Mr Winmar left school in Year 10 but later completed VCE at TAFE.

106 His history of employment includes a night‑shift job at the SPC factory, tree planting on the highway with Rumbalara Aboriginal Cooperative, labouring jobs, factory work on a chicken farm, and working in an orchard. He commenced, but did not complete, a carpet‑laying apprenticeship when his partner became pregnant with their first child.

107 Since Ms Ferguson's death and his move to Melbourne, he has worked in different jobs, including as a machine operator in a meat factory.

108 He is hopeful of obtaining work when released from the sentence in this matter.

109 While Mr Winmar knows many people in Shepparton, his closest relationships have been with his family members. He and his twin brother were inseparable when they were young. Nowadays, while still in regular contact, they see each other a good deal less, as his brother lives in Gippsland, where he works as a drug and alcohol counsellor. Mr Winmar is also close to two of his sisters, who have been supporting him through the current matter.

110 He had one intimate relationship as a young teenager before commencing a relationship at age seventeen or eighteen with Ms Ferguson. When interviewed by psychologist Megan Rodgers in December 2023,[24] Mr Winmar spoke of having a loving relationship with Ms Ferguson. He also disclosed experiencing complex grief in relation to her passing and his role in this, as well as her family placing ultimate responsibility on him for her death.

111 He has had no contact with his children since Ms Ferguson's death, and he misses them dearly. They have maintained a relationship with his side of the family through visits with his mother, his siblings and their children. He hopes to begin contact with his daughters once these proceedings are completed.

112 Mr Winmar began drinking alcohol and smoking cigarettes with peers at twelve or thirteen.

113 He smoked cannabis for about ten years from the age of thirteen.

114 He began using methamphetamine regularly from the age of sixteen or seventeen, having experimented with the drug in earlier years. At the time of Ms Rodgers' report, Mr Winmar had been abstinent from methamphetamine for the eight months since Ms Ferguson's death. He found the withdrawal period difficult, but his far more acute pain concerned the loss of Ms Ferguson's life and his contact with his children.

115 Mr Winmar has attended residential rehabilitation on two previous occasions, most recently in 2020. He also engaged in drug and alcohol counselling in the past, but acknowledged to Ms Rodgers that he may not have been ready to commit to change at those times. At the time of Ms Rodgers' report, and as was apparent at the Koori Court hearing, Mr Winmar was engaged in counselling with an Aboriginal community organisation, which he found extremely useful. He utilised both in‑person and telehealth counselling, as well as group therapy.

116 Before I turn to Mr Winmar's prior convictions, it is convenient at this point to mention three court appearances that occurred after the current offending.

117 First, when he was before the Koori Court on the firearm charge, Mr Winmar was convicted and fined for shoplifting a bottle of whiskey. He had committed that offence back in April 2021.

118 Second, despite his abstinence from drug use for perhaps a year or more after Ms Ferguson's death, Mr Winmar ultimately relapsed. It seems he was also drinking a substantial amount of alcohol. He formed a relationship with another woman, which was on‑again/off‑again for a while. Disappointingly, however, it was a dysfunctional relationship blighted by Mr Winmar's drug and alcohol use. It culminated in him committing offences of assault, strangulation of a family member, breaching an intervention order (twice), and damaging property. He was arrested in January 2025 and sentenced by the Magistrates' Court on 2 April 2025 to a total of four months' imprisonment combined with a CCO for fifteen months. This was his first prison sentence.

119 Third, after he completed the prison component of that sentence, Mr Winmar was doing relatively well for about five months on the CCO. However, he then became enmeshed in a dispute involving his brother's girlfriend's family and others. This culminated in his committing an affray in public with others while holding a meat cleaver. It is not clear whether drug use played any part in that offence. In the result, on 5 November 2025, he was sentenced by the Magistrates' Court to three months' imprisonment, with forty‑five days of pre‑sentence detention declared. He was released on appeal bail ahead of the proposed trial in the current matter. He therefore has about another month‑and‑a‑half to serve in prison if the appeal is not successful.

120 Turning to Mr Winmar's prior convictions, while he has committed numerous offences, he had never been imprisoned before he committed the offences the subject of the current hearing, and all matters were dealt with in the Magistrates' Court. His prior convictions include the following.

121 In 2013 (when eighteen), he was convicted and fined for handling stolen goods.

122 In 2015, he was, without conviction, placed on an undertaking for possessing cannabis, possessing cartridge ammunition, and dealing with property suspected to be the proceeds of crime. Later that year, he was, without conviction, placed on a CCO for riotous behaviour and assault. He was dealt with in 2017 for breaching that CCO.

123 In 2016, he was convicted and fined for possessing a controlled weapon and possessing cannabis.

124 In 2018, he was convicted and placed on a CCO for assault, aggravated assault of a female, and possessing a controlled weapon. At that time, he was also dealt with for again breaching the CCO imposed in 2015.

125 In 2019, he was convicted and placed on a CCO for receiving stolen goods, possessing a controlled weapon, careless driving, driving an unregistered vehicle, and failing to display P‑plates. He was also dealt with for breaching the CCO imposed in 2018. He was later dealt with for breaching the CCO imposed in 2019 as well.

126 In 2020, he was convicted and fined for shoplifting and committing an offence while on bail. Also in 2020, he was convicted and placed on a CCO for damaging property, driving offences (including reckless conduct endangering serious injury), possessing methylamphetamine, possessing a controlled weapon, and shoplifting. In 2021, he was dealt with for breaching the two CCOs imposed in 2020.

127 I turn now to the mitigating factors, commencing with Mr Winmar's admissions. When arrested, he made extensive admissions that form the basis of the case against him. Without those admissions, the circumstances in which the offences occurred would be far less clear, and the Crown might not have had a case on reckless endangerment.

128 Second, Mr Winmar's pleas of guilty are very significant mitigating factors.

129 Both pleas are of significant utilitarian value, as they have avoided what would have been a difficult trial, especially for Ms Ferguson's family. I also accept that the pleas indicate a willingness to facilitate the course of justice.

130 His guilty plea to the firearm offence was very early, as it was indicated well before, and at, the Koori Court hearing.

131 His guilty plea on the reckless conduct charge is also to be treated as early, because it was entered only within weeks of the charge being laid. Moreover, that particular plea is of especial weight, because it was entered in the face of a viable defence concerning the recklessness element of the offence.

132 Third, I am satisfied that Mr Winmar is profoundly remorseful for his offending.

133 It is clear that he believes that he is morally, if not legally, responsible for Ms Ferguson's death, and its impact on their children and her family. His devastation was plain to witness on the triple‑zero call and on the body‑worn camera footage taken on the night of the offending. In her report, Ms Rodgers observed that Mr Winmar was "extremely remorseful" - and that he experienced "extreme guilt exacerbated by grief" - when he consulted her in December 2023. His pleas of guilty - especially to the endangerment offence - are also indicative of remorse.

134 Fourth, while the children and Ms Ferguson's loved ones are of course devastated at their loss, Mr Winmar is also devastated at his loss of his partner of over ten years and the mother of his children. Further, he has lost any contact with those children, who now live with their maternal grandparents. In addition, he has had to move away from Shepparton.

135 In my opinion, these consequences have been a significant form of extra‑curial punishment for Mr Winmar.

136 Fifth, another factor related to punishment, but from a different source, is this. Mr Lavery emphasised that, as an Aboriginal man, Mr Winmar willingly engaged in a sentencing conversation with his elders in the Koori Court when only the firearm charge had been laid. As we have seen, he was confronted and shamed by his elders for his behaviour, which, despite the limited nature of the charge, also involved discussion of the impact of Ms Ferguson's death. He was told that he had let his people down.

137 I accept that this shaming and admonishment is a form of punishment - or, if not punishment, at least a relevant consideration - to be brought into account in the sentencing calculus.

138 The sixth mitigating factor arises in these circumstances.

139 In her neuropsychological report,[25] Dr Evrim March noted that Mr Winmar disclosed that he was using ice around the time of the offending and that he was feeling paranoid that other people were "trying to hit him". It was in that context that he made the gun and kept it at home. Later in her report, Dr March noted that a key symptom Mr Winmar suffered in the period surrounding the offending was paranoid ideation, which she opined appeared to be drug induced. While she said that it is difficult to assess the extent of this retrospectively, she referred back to (what she described as) Mr Winmar's clear account of developing paranoid symptoms in relation to methamphetamine use.

140 Ms Rodgers also noted that Mr Winmar had a long history of substance abuse, primarily cannabis and methamphetamine, and a history of paranoia. She also opined that his account of making and keeping the firearm for protection was consistent with his experience of paranoid thoughts. Ms Rodgers went on to say that, given his executive dysfunction and high‑risk for ABI, as well as mental illness and substance abuse, it is likely that his problem‑solving skills were compromised. She added that this is likely related to his "solution" to his paranoia - that is, to fashion a homemade firearm for protection.

141 Elsewhere in her report, Ms Rodgers noted that Mr Winmar's early exposure to his mother's substance abuse is a factor of disadvantage which has been associated with poor development outcomes and an increased likelihood of the child becoming a substance abuser and being involved in the criminal justice system.

142 Given that evidence, I accept Mr Lavery's submission that, in view of Mr Winmar's deprived early life (including his exposure to drug use throughout his childhood), it is not surprising that he descended into drug use, including ice, from an early age and into later life. I also accept that his use of ice around the time of the offending led to his paranoia that convinced him of the need for a gun for protection. In those circumstances, then, I accept that the principles in Bugmy[26] have some application in reducing his moral culpability for both offences.

143 Mr Shaw accepted that those principles have application, but submitted that it is a consideration of only modest weight. If by that he meant that I should find that there was only a modest reduction in the moral culpability for his offending on account of this consideration, then I agree.

144 Mr Shaw went further and submitted that the same aspect of Mr Winmar's makeup also increases the need for community protection. However, given that he is grief‑stricken and devastated by the loss of his partner, that he feels morally responsible for her death, and that his behaviour has resulted in the loss of contact with his children for over two‑and‑a‑half years, I am satisfied that Mr Winmar is extremely unlikely ever again to have a loaded gun at all at his premises, let alone to store such a gun in an unsafe manner.

145 Mr Shaw submitted that Mr Winmar's devastation has not been such as to stop him from committing offences of other kinds - namely, the offences for which he has been imprisoned on two separate occasions this year. I accept that those matters go to the weight to be accorded to specific deterrence and community protection generally. However, I maintain the opinion that the grave extra‑curial punishment he has suffered means that the weight to be accorded to the same purposes when considering sentencing for the current offences is not to be increased by reason of the same Bugmy factors that (modestly) reduce his moral culpability for those offences.

146 Seventh, Mr Lavery pointed out that Ms Rodgers is of the opinion that Mr Winmar has PTSD, a major depressive disorder, and a generalised anxiety disorder. Importantly, submitted Mr Lavery, Ms Rodgers went on to say that his conditions are "likely to deteriorate in a custodial environment due especially to his mental illness including complicated grief and lifestyle stressors such as lack of contact with his daughters". Thus, in his submission, the sixth limb of the principles in R v Verdins[27] is engaged.

147 I note that Dr March also opined that, if imprisoned, Mr Winmar is "at risk of a mental health decline, noting that this would be his first incarceration". While the latter point was correct when written, as we have seen, Mr Winmar has been imprisoned twice (albeit for relatively short periods) since then. And there is no evidence before me that his mental health did in fact deteriorate on either occasion of imprisonment. That said, Ms Rodgers' opinion did not contain the same qualifier.

148 In Verdins, the Court of Appeal held that impaired mental functioning may be relevant to sentencing in at least six ways.[28] The sixth of those ways would arise where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, which would be another factor tending to mitigate punishment.[29]

149 While neither expert used the precise (and arguably stronger) language of the sixth limb of Verdins - "a serious risk of imprisonment having a significant adverse effect on the offender's mental health" - I fear it would be too pernickety to deny the operation of the principle on this basis. Further, I did not understand Mr Shaw to put any submission to the contrary of Mr Lavery's submission on this issue.

150 In all the circumstances, I am satisfied, but only just, that that sixth limb is engaged in sentencing Mr Winmar, albeit only to a modest extent. Thus, while I accept that his mental health is likely to deteriorate in prison, I consider that that factor mitigates punishment only to a modest degree.

Burden of manslaughter hanging over head for long period

151 Eighth, Mr Lavery submitted that it is a mitigating factor that, for all but the first ten months after the offending and up until only very recently (a period of about twenty‑one months), Mr Winmar has had the strain of a manslaughter charge hanging over his head, which has caused him considerable stress and anxiety.

152 I accept that submission. While Mr Winmar feels morally responsible for Ms Ferguson's death, it is another thing altogether to have had a manslaughter charge - and the associated perceived risk of conviction and a substantial term of imprisonment - hanging over his head for such a long time. This state of affairs would cause great stress and anxiety even to those of the sturdiest of disposition.

Loss of chance of partial concurrency with other sentence/s

153 Ninth, Mr Lavery emphasised the importance of totality and delay in this case. In particular, he submitted that, had this matter been dealt with at around the same time as the subsequent matters for which Mr Winmar received a four‑month prison term for assault and related offences, or the three‑month prison term for affray (forty‑five days of which he has served), then, notwithstanding those offences were committed while on bail for the current matter, it would be reasonable to expect a degree of concurrency between any sentence for the current offences and either of those sentences.

154 I accept that submission. The sentence generally, and the length of any prison component of the sentence in particular, must be tempered by the interaction of totality, the delay that could have been avoided, and the loss of the chance to have a measure of concurrency between the current sentence and at least the prison sentence imposed on the subsequent assault‑related matters.

155 In broad terms, the prison component of the sentence I am about to impose is around two or three months shorter than it would have been but for the loss of the chance of a measure of concurrency with the prison sentences for the subsequent matters, particularly the four‑month sentence imposed in April.

156 The tenth and final matter in mitigation concerns Mr Winmar's prospects of rehabilitation.

157 Mr Shaw submitted that, given the nature of the offending, his criminal record, and his subsequent offending, Mr Winmar's prospects of rehabilitation should be regarded as poor. In this regard, this morning, Mr Shaw also pointed to the CCO suitability report, where it was said that Mr Winmar had been using ice and drinking heavily in recent times, and where the author opines that he is a high risk of reoffending.

158 Mr Lavery submitted that Mr Winmar's genuine remorse, which is rare, is a matter that enhances his prospects of rehabilitation. This morning, he added that Mr Winmar's frank disclosure to the CCO assessor is an encouraging sign that he is now at a stage where he is ready to take rehabilitation seriously.

159 In my opinion, Mr Winmar's prospects of rehabilitation are reasonable. Not excellent, very good or good, but just reasonable. They are not poor.

160 His criminal history (both prior and subsequent) and his long‑term history of drug and alcohol abuse, and the opinion that he is a high risk of general reoffending, count against him in this regard.

161 However, his pleas of guilty, his remorse, his abstinence from drug use for about a year after the offending, his preparedness to be shamed by his elders, and his better performance on a CCO in recent times, collectively, persuade me that his prospects of rehabilitation are more accurately assessed as reasonable. Further, the abandonment of the manslaughter charge has removed a very heavy weight off his shoulders, and is likely to give him a more positive outlook for the future. Finally, and relatedly, because the manslaughter is now gone, his goal of resuming contact with his children is likely to be far more realistic. That goal, in my view, is likely to be a powerful motivating factor for Mr Winmar to better himself and keep on the straight and narrow. I hope he does.

162 I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation.

163 In my view, general deterrence, denunciation and just punishment are important sentencing purposes in this case. Anyone minded to store a loaded gun in an unsafe place or any prohibited person minded to possess a gun at all must understand that, usually, just punishment will be meted out by way of a prison sentence upon conviction, and also that the Court roundly denounces such conduct.

164 Given Mr Winmar's prior and subsequent convictions, I think specific deterrence and community protection are of some weight, albeit that weight is reduced to some extent by the extra‑curial punishment he has suffered, as well as by his pleas of guilty, his remorse, and his prospects of rehabilitation.

165 Rehabilitation remains an important purpose in sentencing Mr Winmar, for at least two reasons. First, because I am satisfied that his prospects of reform are reasonable, rehabilitation is a sentencing purpose that must be afforded significant weight. Second, it is necessary to recognise the interplay between rehabilitation and protection of the community. Mr Winmar will be returning to the community. It is therefore in the community's interests that such prospects of rehabilitation as he has be maximised, and that he is not crushed by an unduly long prison sentence, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be, and his chances of successful reintegration into society are as strong as they can be.

166 Next, I note that the sentence I shall pass is intended to conform with the principle of parsimony, as it must. This principle, which is reflected in s 5(3) of the Sentencing Act in a modified form, provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

167 Next, I note that, in considering the appropriate sentence, I have considered current sentencing practices, in so far as I can determine them. These practices are but one factor in sentencing, and certainly not a controlling one at that, but, where known, they are nevertheless important in the sentencing synthesis.

168 In order to gauge sentencing practices for these offences, I have had regard to sentencing statistics.

169 Statistics kept by the Sentencing Advisory Council ("SAC") for the period from July 2019 to June 2024 show that, when dealt with in the higher courts, eighty‑six percent of sentences for reckless conduct endangering life attracted a prison sentence. The shortest period of imprisonment was measured in weeks, the longest was six years, and the median was two years.[30]

170 Statistics kept by the SAC for the same period show that, when dealt with in the higher courts, ninety‑four percent of sentences for the firearm offence attracted a prison sentence. The shortest period of imprisonment was a month, the longest was four years, and the median was one year.[31]

171 These statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations - such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether there were significant prior convictions or not, and so on. Nevertheless, they do give some guidance.

172 Sometimes, case comparisons may also assist in gauging current sentencing practices. However, as the parties accepted, this was an unusual case. And neither counsel nor I found a similar case.

173 The only case that received a deal of attention at the hearing was DPP v Majok.[32] In that matter, the Court of Appeal dismissed a Crown appeal against the imposition of a CCO for an offence of reckless conduct endangering life. However, while Majok was closer to the present case in some ways, there were still significant differences between the offending and personal circumstances in the two cases.

174 Of course, other sentences are not precedents to be applied or distinguished anyway. But, where a range of similar cases is available, they can give some useful guidance as to current sentencing practices. As I say, however, no similar cases were found.

175 Nevertheless, recognising the significant limitations of the foregoing sentencing statistics and the sole case comparison, I am satisfied that the sentence I am about to impose is consistent with what I understand to be current sentencing practices for the two offences.

176 Next, I turn to the report I received from Corrections as to Mr Winmar's suitability for a CCO.[33]

177 The author concludes that, notwithstanding his history of non‑compliance with CCOs, Mr Winmar has demonstrated motivation to comply with an order and participate in interventions designed to address his criminogenic needs. The author also notes that he had demonstrated improved engagement in his most recent CCO. In the result, he is assessed as suitable for a further CCO.

178 The author goes on to recommend additional conditions which I intend to impose.

179 However, as I mentioned this morning, notwithstanding that the report records Mr Winmar's desire to engage in residential rehabilitation for a prolonged period, the author does not address my request to consider whether Corrections could facilitate, as part of the CCO, a stint by Mr Winmar at a residential programme at Wulgunggo Ngalu Learning Place ("WNLP"), which is in Gippsland.

181 Mr Lavery submitted that Mr Winmar should be released on a CCO.[34] He added that the CCO, if possible, should incorporate a residential stint at WNLP in Gippsland, which Mr Winmar is keen to do. He submitted that mercy had a role to play in sentencing Mr Winmar, especially in circumstances where he has lost his partner and he has had no contact with his children since April 2023. In the alternative, he submitted that a relatively short prison sentence combined with a CCO would be open.[35]

182 Mr Shaw submitted that no sentence other than a head sentence with a non‑parole period would be appropriate.[36]

185 Balancing all matters as best I can, as I foreshadowed earlier, for the offences of being a prohibited person in possession of a firearm and reckless conduct endangering life, Mr Winmar is convicted and sentenced to an aggregate term of imprisonment for three months in combination with a CCO for twelve months.[37]

186 Assuming Mr Winmar consents to the CCO,[38] it will commence upon his release from his term of imprisonment.[39] He will be required to attend the Corrections office nominated in the CCO report within two working days of his release from prison.

187 The CCO includes all the standard conditions,[40] as well as the following additional conditions:[41]

a) completion of 200 hours of unpaid community work;[42]

b) supervision;[43] and

c) treatment and rehabilitation,[44] including:

i. assessment and treatment (and testing) for drug abuse or dependency; and

ii. assessment and treatment (including testing) for alcohol abuse or dependency; and

iii. mental health assessment and treatment; and

iv. a programme that addresses factors related to Mr Winmar's offending behaviour; and

v. if he is considered suitable and if a place is available in their programme, a residential placement for at least four months at the Wulgunggo Ngalu Learning Place.

188 Thus, despite the fact that the Corrections report did not address it, I have included a condition concerning a potential residential placement at WNLP. I hope that can be accommodated within the CCO and that a place is available at WNLP in three months from now. In my view, completion of a stint at that facility would be in the interests not only of Mr Winmar but also of the community in the longer run.

189 Pursuant to s 6AAA of the Sentencing Act, I declare that, had Mr Winmar not pleaded guilty to the charges, and had he instead pleaded not guilty and been found guilty following a trial, I would have imposed a total effective sentence in the order of fifteen to eighteen months' imprisonment with a non‑parole period in the order of seven to nine months.

190 Finally, I make the forfeiture order sought by the Crown, which was not opposed.

[1] Contrary to s 5(1) of the Firearms Act 1996 (Vic).

[3] Contrary to s 22 of the Crimes Act 1958 (Vic). He was also charged, in the alternative, with reckless conduct endangering serious injury (contrary to s 23 of the Crimes Act 1958 (Vic)).

[4] Conducted pursuant to ss 207-209 of the Criminal Procedure Act 2009 (Vic).

[5] Pursuant to s 44 of the Sentencing Act 1991 (Vic).

[6] Being a prohibited person in possession of a firearm is an indictable offence triable summarily (see ss 28-30 of the Criminal Procedure Act 2009 (Vic)).

[7] For this reason (and perhaps also as a matter of fairness), the firearm charge never formed part of any iteration of the trial indictment.

[8] The application for a permanent stay initially came before me on 23 October 2024. That application was originally put on bases other than the one concerning the element of causation. Since those bases were no longer pursued, it is unnecessary to summarise them.

[9] R v Winmar (Ruling 1) [2025] VSC 703 at [40].

[10] R v Winmar (Ruling 1) [2025] VSC 703 at [34]-[49].

[11] Summary of Prosecution Opening (26 March 2025) at [3].

[12] Defence Response (17 April 2025) at [15].

[13] The charge of being a prohibited person in possession of the firearm did not form part of either the previous indictment or the new one as there was no dispute about that charge (see also footnote 7).

[14] In that Defence Response (5 November 2025), as well as raising evidentiary issues, counsel for Mr Winmar (at [9]-[10]) put in issue whether "a reasonable person ... who committed the same conduct, as the accused, in the same circumstances, would have realised that [he or she] was placing another person at risk of death [or] serious injury, or may have been placing another person at risk of death or serious injury", and whether the accused "foresaw either consequence".

[15] See R v Winmar (Rulings 2‑7) [2025] VSC 704.

[16] Pursuant to s 168 of the Criminal Procedure Act 2009 (Vic) (reckless endangerment is triable summarily).

[17] The matter was also adjourned for further plea in the event that any submissions were thought necessary following the receipt in the interim of a report from Corrections on Mr Winmar's suitability for a CCO. As it happened, I did hear further submissions today arising out of that report. See further below.

[18] See paragraph (c)(i) of the definition of "prohibited person" in s 3 of the Firearms Act 1996 (Vic).

[19] In the "Comments" section of her report, the pathologist Dr Judith Fronczek recorded that toxicological analysis of Ms Ferguson's urine revealed, among other things, "[m]ethylamptamine (a strong stimulant drug)" and that "THC, the active from of cannabis, was also detected in [her] blood and urine". No submissions were made by counsel concerning the existence of this evidence or whether either or both of these drugs might have affected Ms Ferguson's behaviour at the time of the incident.

[20] See, e.g., DPP v Majok [2017] VSCA 135 at [28]-[29] & [33]-[50], esp. at [44]-[45] (per Priest, Kyrou and Kaye JJA).

[21] See s 22 of the Crimes Act 1958 (Vic).

[22] Bugmy v The Queen (2013) 249 CLR 671.

[23] See s 5(1) of the Firearms Act 1996 (Vic).

[24] Ms Rodgers' report is dated 27 December 2023, and she interviewed Mr Winmar on 13 December 2023.

[25] Dr March's report is dated 28 April 2024, and she saw Mr Winmar on 13 March 2024.

[26] Bugmy v The Queen (2013) 249 CLR 671.

[27] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (per Maxwell P, Buchanan and Vincent JJA).

[28] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276[32].

[29] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276[32](6).

[30] Sentencing Advisory Council, SACStats, Reckless conduct endangering life, Higher courts, 1 July 2019 to 30 June 2024. While 169 of the 189 charges (or 86%) attracted imprisonment, of the 66 cases in which the offence was the principal proven offence, the most common outcome was imprisonment - in particular, 39 of those 66 cases (or about 59%) attracted imprisonment.

[31] Sentencing Advisory Council, SACStats, Prohibited person possess, use or carry a firearm, Higher courts, 1 July 2019 to 30 June 2024. While 345 of the 365 charges (or 94.5%) attracted imprisonment, of the 60 cases in which the offence was the principal proven offence, the most common outcome was imprisonment - in particular, 38 of those 60 cases (or about 63%) attracted imprisonment.

[32] DPP v Majok [2017] VSCA 135.

[33] As to the requirement for a pre‑sentence report before making a CCO, see s 37(b) of the Sentencing Act 1991 (Vic).

[34] Pursuant to ss 7(1)(e)), 36 and 37 of the Sentencing Act 1991 (Vic).

[35] Pursuant to s 44 of the Sentencing Act 1991 (Vic).

[36] Pursuant to ss 7(1)(a) and 11 of the Sentencing Act 1991 (Vic).

[37] Pursuant to s 44 of the Sentencing Act 1991 (Vic).

[38] Which he did, as signified by his signing the order after its terms were explained to him by counsel.

[39] See s 44(3) of the Sentencing Act 1991 (Vic).

[40] See s 45 of the Sentencing Act 1991 (Vic).

[41] Pursuant to ss 47 and 48A of the Sentencing Act 1991 (Vic).

[42] Pursuant to s 48C of the Sentencing Act 1991 (Vic). I considered, but ultimately rejected, Mr Lavery's submission that I should order, pursuant to s 48CA, that some or all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours for the purposes of the unpaid community work condition. That said, if Mr Winmar spends time at the residential programme at Wulgunggo Ngalu Learning Place as part of this CCO, it would be open to the Secretary to treat at least some of the work he might do there as unpaid community work for the purposes of the unpaid community work condition.

[43] Pursuant to s 48E of the Sentencing Act 1991 (Vic).

[44] Pursuant to s 48D of the Sentencing Act 1991 (Vic).