The Queen v Afacan & Ghanim [2015] VSC 755

1 It is sometimes said that violence begets violence. Perhaps it has always been so. But, if this case is anything to go by, it seems to be getting worse. Had either one of main protagonists in these events been prepared to turn the other cheek, nothing too serious would have occurred. Would it were so.

2 And so it was that a warning by Tucge Afacan to her friends about the bad character of Serkan Kala caused great offence and led him to utter gravely threatening words about Ms Afacan to her brother Tugay Afacan, which in turn caused Mr Afacan even greater offence and ultimately led to actual violence by him and dangerous behaviour by another towards Mr Kala.

3 In particular, on 3 November 2014, Mr Afacan took a sawn-off shot-gun to a public street and fired it once at Mr Kala from a distance of ten to fifteen metres, causing a spray of pellets to strike him in the upper body and head region. Mr Kala turned and fled to his car. Mr Afacan's friend Sanar Ghanim encouraged him to fire a second time, which he did, causing pellets to strike Mr Kala's car, but not him, as he sped away.

4 As a result of the first shot, Mr Kala suffered numerous puncture wounds to his head, face, neck and abdomen. Fortunately, his physical injuries were much less serious than they might have been, and he was he was released from hospital within two days. But, not surprisingly, some mental scars remain.

5 For his behaviour, Mr Afacan has been charged with, and has pleaded guilty to, intentionally causing serious injury to Mr Kala and being a prohibited person in possession of a firearm. Mr Ghanim has been charged with, and has pleaded guilty to, reckless conduct endangering the life of Mr Kala, as well as the cultivation of ten cannabis plants found at his premises subsequently.

6 Shortly, I shall impose sentence on Mr Afacan and Mr Ghanim for those crimes. Before doing so, I shall set out the relevant circumstances in more detail.

7 This sorry chain of events started with Mr Kala's interest in sixteen-year-old Seniz Suleyman. Late on 2 November 2014, Mr Kala had his female friend Melike Yavuz introduce him to Ms Suleyman outside her family home. As agreed with Ms Yavuz earlier, he was introduced only (and falsely) as "Khaled". The three of them headed off together in a car. Subsequently, Mr Kala and Ms Yavuz dropped Ms Suleyman back at her family home.

8 At that time, Ms Afacan was at Ms Suleyman's home with another friend. Ms Suleyman showed Ms Afacan a picture of "Khaled". Ms Afacan said she knew him as Serkan Kala and warned her that he was "bad news". Ms Afacan also texted Ms Yavuz, telling her to "stay away from Serkan, he does stand-overs, he's not a good guy".[1] (The fact is that Mr Kala does have an extensive criminal history, including for offences of violence.)

9 Ms Yavuz was still with Mr Kala in the car when she received the text, which, perhaps unwisely, she showed him. Mr Kala was angered by the remarks. He decided he would take the matter up with Ms Afacan's brother Tugay, whom he had known for seven years.

10 Late the next evening, Mr Kala rang Mr Afacan. Mr Kala says he told him to tell his sister "to stop talking shit". Mr Afacan says that Mr Kala said more than that, and far more stridently. On the evidence before me, I am satisfied that Mr Kala said (at least), "Tell your sister to shut her mouth or I'll snap her neck." As I indicated at the hearing, however, there is no satisfactory evidence of any threat by Mr Kala to rape her.[2] In any event, not surprisingly, the threat to snap his sister's neck was enough to get Mr Afacan's blood boiling. He invited Mr Kala to meet him at Doherty's Gym in Campbellfield.

11 Mr Kala drove to the gym and parked his car. He rang Mr Afacan, who came outside with Mr Ghanim. They argued about Mr Afacan's sister. Mr Afacan and Mr Ghanim asked Mr Kala to move to an area where there were no security cameras, but he refused. The argument became heated and almost erupted into a physical fight, but no punches were thrown. Independent witnesses heard yelling and a male shout, "Let's go, if you want to start something." That was Mr Kala. He left after a few minutes.

12 After leaving the gym, Mr Kala rang Mr Afacan again. They argued again. Each threatened to "smash" the other. Mr Afacan asked to meet again. Mr Kala agreed to do so. He thought they would argue, "sort their shit out" and then "get over it". Mr Afacan suggested the gym again but then changed his mind and gave directions to meet at an industrial area in Northcorp Boulevard, Broadmeadows.

13 When Mr Kala arrived at the appointed place, he noticed a woman in the driver's seat of a BMW vehicle. That was Danielle Stephens, the partner of Mr Ghanim, who was also in the car with Mr Afacan. Mr Kala parked his car on the opposite side of the road. He got out and walked towards the BMW.

14 At that point, Mr Afacan came running towards Mr Kala and shot him with a double-barrel chrome sawn-off shot-gun. After he realized he had been shot, which took a moment, Mr Kala turned, ran back to his car and got inside.

15 Mr Afacan and Mr Ghanim began chasing him. Mr Ghanim said, "Shoot him again." As Mr Kala sped off in his car as fast as he could, Mr Afacan fired a second shot, which resulted in pellets striking the rear and right side of the car.

16 Mr Afacan and Mr Ghanim ran back to the BMW and drove away with Ms Stephens.

17 Mr Kala drove to an industrial area in Military Road, Broadmeadows. While there, people helped him and rang emergency services.

18 Police arrived soon afterwards. Mr Kala, who was distressed and covered in blood, told a police officer that he had been shot twice with a shot-gun by his "friend", but did not identify him any further at that point.

19 Mr Kala was taken to the Royal Melbourne Hospital. The pellets had caused 22 puncture wounds to his head, face, neck and abdomen. Given the risk of significant injury to his heart, lungs and abdomen from the location of some of the pellets, Mr Kala was transferred to the high dependency unit for monitoring. Fortunately, however, further investigation revealed no injury to any organs. Within 48 hours, Mr Kala was discharged home on simple analgesia with follow-up with his local doctor, only if required.[3] Nevertheless, some pellets could not be removed and will remain in his body for life; and he still suffers pain and significant ongoing emotional trauma.

20 While at the hospital, Mr Kala told a police officer that he had had an argument with Mr Afacan. He showed the officer Mr Afacan's Facebook page and indicated that the second male involved in the shooting was depicted in photographs on the Facebook page, but he was unable to name him. He said he had seen the female driver of the BMW but did not know her name.

22 Mr Ghanim was arrested on 6 November 2014. At Mr Ghanim's home, police found a hydroponic system containing ten cannabis plants, which he admitted belonged to him. The total (green) weight of the cannabis was 4.2 kilograms.

23 Originally, Mr Afacan and Mr Ghanim were each charged with and committed for trial on attempted murder, as was Ms Stephens. On the second day of pre-trial discussion in this Court, however, the matter settled. The Director filed over an indictment charging the current offences against Mr Afacan and Mr Ghanim relating to the shooting and a separate indictment charging Mr Ghanim with cultivation of cannabis. The matter was discontinued as against Ms Stephens.

24 Ms Hassan, who appeared for the Director, read Mr Kala's victim impact statement to the Court.[4] In summary, Mr Kala claims that, as a result of the shooting, he is afraid to go out in public, particularly at night. He says he has nightmares and panic attacks, is edgy and upset and is being treated for severe depression. He says that the pellets in his head and close to his heart prevent him from doing what he described as his "daily duties".[5] He says that he cannot even have a haircut or wear a cap. Mr Kala says he fears that his life will never be what it used to be.

25 However, Mr Tyrrell, who appeared for Mr Afacan, tendered documents showing that, on 30 January 2015, Mr Kala was arrested and charged with four counts of resisting police.[6] He submitted that this shows that Mr Kala was indeed out in public, at least on this occasion. Further, he referred to the fact that Mr Kala has an extensive criminal history for dishonesty and violence. The history outlined in the depositions includes convictions for dishonesty offences such as burglary, theft, obtaining property by deception and car theft, and violent offences such as assault, intentionally causing injury, robbery, threatening to inflict serious injury, resisting police, affray, recklessly causing serious injury, armed robbery and possessing a controlled weapon.[7] Some of these offences have resulted in sentences of detention in youth training centres. Mr Tyrrell also pointed out that Mr Kala had recently been sentenced in the County Court to over 400 days' imprisonment for a series of offences committed in 2013, including intentionally causing injury. He submitted that, in all the circumstances, I should view the victim impact statement with a degree of caution. Ms Hassan did not challenge this submission.

26 I accept Mr Tyrrell's submission, in part. I do not accept Mr Kala's claims that he is afraid to go out in public. Nor do I accept that he cannot do "daily duties", get a haircut or wear a cap as a result of the shooting. If he can go and get himself arrested for resisting police, he is capable of going out in public and performing his usual daily duties. I might have been prepared to accept that, because of the pellets lodged under his skin, a barber may need to be careful when cutting his hair or that a cap may feel a bit uncomfortable. But that is not what Mr Kala asserts. Nor do I accept that any panic attacks or depression he may suffer have resulted from the shooting. I would not conclude any such thing in his favour without medical evidence. And none was led.

27 I do accept, however, that anyone - even a person who is prepared to threaten to snap a girl's neck because she, with good cause, has dared to warn her friends that he is "bad news" - who has been shot with pellets to the upper body and head region in the circumstances in which Mr Kala was shot and injured would suffer not only physical pain but also psychological distress, and that anyone - even a person who has engaged in violent and threatening behaviour to others - who has also been shot at, but not physically injured, while in a car in the circumstances in which Mr Kala found himself also would suffer psychological distress. I also accept that, as a result, for some considerable time, Mr Kala's life will not be the same as was previously.

28 Accordingly, in so far as Mr Kala has suffered and continues to suffer physical pain and psychological distress as a result of being shot, I have had regard to those factors in sentencing Mr Afacan on the charge of intentionally causing serious injury.[8] While it is difficult to disentangle such things, in so far as Mr Kala was frightened by the second shot and that has added to his psychological distress, I have had regard to that fact in sentencing Mr Ghanim on the charge of reckless conduct endangering life.

Tugay Afacan - Nature/gravity of offences and mitigating factors

29 I shall turn now to the nature and gravity of Mr Afacan's offences, then to the factors on which he relies in mitigation and then to the relevant sentencing purposes and some other relevant considerations. After doing that, I shall take the same course in respect of Mr Ghanim, and then announce sentence in each case at the conclusion of these reasons.

30 Intentionally causing serious injury is, by definition, a serious offence. It involves intentionally causing another person serious injury and carries a maximum penalty of twenty years' imprisonment.[9]

31 Several features of the offence committed by Mr Afacan suggest that this is a very serious example of the offence. First, without knowing any more about this case, to fire a sawn-off shotgun at another at a distance of ten to fifteen metres in a public street and thereby to cause the pellets of the shot to strike the other person in the upper body or head region and cause serious injury, and intentionally so, is a gravely culpable thing to do.

32 Secondly, it is plain that the shooting was intended to terrify Mr Kala and to cause him serious injury, and had precisely that effect.

33 Thirdly, there was an element of premeditation in Mr Afacan's behaviour. After all, he went to the meeting armed with a loaded shot-gun.

34 Fourthly, there is no evidence that Mr Kala was armed. Thus, he was vulnerable in the face of a man armed with a sawn-off shot-gun.

35 Fifthly, the offence was committed in company (albeit Mr Ghanim is not to be punished for this offence). The presence of another person would have compelled Mr Kala to believe that it was less likely that he could defend himself - for example, by attempting to disarm Mr Afacan. Thus, he was rendered even more vulnerable by the presence of a second person.

36 Sixthly, the offending was aggravated by the fact that Mr Afacan was on parole for serious offences at the time, some of which involved violence. On 23 February 2012, Mr Afacan was sentenced in the County Court to a total effective sentence of four years' imprisonment with a non-parole period of two years for various offences committed in July-August 2011, when he was aged 20. Those offences included blackmail, false imprisonment, armed robbery, threatening to kill, threatening to cause serious injury, reckless conduct endangering serious injury and recklessly causing serious injury. Mr Afacan was released on parole in January 2014.[10]

37 On the other hand, other factors suggest this offence should be assessed as lower on the scale of gravity. First, although the injury suffered is accepted to be "serious injury", it strikes me as physical injury falling towards the lower end of the scale of serious injury. While Mr Kala was placed in the high dependency unit for monitoring initially, he was released within 48 hours of admission, without the need for surgery. There is no evidence of any immediate or permanent injury of a grave kind. None of this is to ignore the physical pain and psychological effects that Mr Kala has suffered as a result of being shot or the discomfort he has in living with pellets in his body permanently. Nor does this ignore the definition of serious injury, which is an injury (including the cumulative effect of more than one injury) that endangers life or is substantial and protracted.[11] Further, there must have been an appreciable risk that, depending upon where the pellets struck, more serious injury (such as to Mr Kala's eyesight) or even death might be caused. But the physical harm actually caused seems to be incommensurate with the level of injury one might expect from a shot-gun blast to the upper body/head region and is rather towards the lower end of the scale of physical harm that might meet the definition of serious injury.

38 Secondly, Mr Tyrrell submitted that I should act on the basis that Mr Afacan's intention was only to frighten Mr Kala and to cause the comparatively low level of serious injury that was in fact caused, and no more. He submitted that the photographs demonstrate that the pellets - which were "birdshot" - were so small that, to fire from ten to fifteen metres and with a sawn-off shot-gun (which would make the spread of pellets even broader), meant that only the low level of serious injury that was suffered was ever likely to be caused, and that that is consistent with Mr Afacan's intention. The photographs do depict numerous quite small puncture wounds where the pellets from the first shot entered Mr Kala's upper body, neck, face and head,[12] and also numerous small marks where the pellets from the second shot struck the rear windscreen, rear quarter-panel and rear passenger window.[13] While he must have realized there was a risk of more serious harm, I also accept Mr Tyrrell's submission that Mr Afacan intended no more than the physical harm and fear that was in fact caused.

39 Thirdly, Mr Tyrrell emphasized that, in several respects, Mr Kala was the protagonist in these events. Mr Kala made the initial call to Mr Afacan. He had in fact made several other calls to Mr Afacan which he did not return. Mr Kala went to the meeting at the gym. Mr Kala was the one outside the gym saying, "Let's go, if you want to start something." Mr Kala rang Mr Afacan again after that meeting. Mr Kala threatened to "smash" Mr Afacan. And Mr Afacan went to the final meeting. All of that is true. Had Mr Kala just let the matter go, none of this would have happened. But, on its own, this is only a minor consideration. It was Mr Afacan who also threatened to "smash" Mr Kala. And it was Mr Afacan who agreed to the final meeting and who escalated things to an extreme degree by producing and firing a sawn-off shot-gun.

40 Fourthly, however, Mr Kala's behaviour is of more significance when considered in light of his threat to "snap" Mr Afacan's sister's neck and his history of violence. This was a grave and highly provocative threat made by a man with an extensive history of harming others, of which Mr Afacan was aware. Of course, the threat does not excuse Mr Afacan's behaviour. He should not have sought to take the law into his own hands, and certainly should not have taken a gun and fired it at Mr Kala. While it might be thought to be a tad unrealistic in the circles in which the two young men have been mixing in recent years, nevertheless, instead of acting as he did, Mr Afacan might have reported the matter to police or simply told Mr Kala to stay away from his sister or just turned the other cheek. That he reacted as he did shows the limits of Mr Afacan's self-control and judgment, which itself is concerning. But it is understandable that he was incensed by the threat and that, in light of that threat and Mr Kala's repeated attempts to remonstrate about the matter, he felt the need to protect his sister from such a person. Accordingly, in my view, there is a lesser degree of moral culpability in his behaviour than there would have been absent the provocative threat made by Mr Kala.

41 Having weighed and balanced all of the foregoing considerations, I have reached the view that this is a serious example of intentionally causing serious injury, but, for the additional reasons I have given, not as serious as it might seem at first blush.

42 Section 5(1) of the Firearms Act 1996 (Vic) provides that a "prohibited person must not possess, carry or use a firearm". The offence carries a maximum penalty of ten years' imprisonment.

43 The charge against Mr Afacan is that he possessed a firearm on 3 November 2014, i.e. the day of the shooting. Mr Tyrrell explained that Mr Afacan was a "prohibited person" because, within the previous five years, he had served a term of imprisonment of less than five years' duration for an indictable offence.[14]

44 The offence is aggravated by at least two matters. First, the firearm possessed was not just any firearm. Rather, it was a sawn-off double-barrelled shot-gun. Secondly, Mr Afacan was on parole at the time of the offence.

45 It might be thought that the offence was aggravated by the fact that the firearm was used to commit an offence - and in a public street, no less. There are, however, two difficulties with that proposition. First, Mr Afacan could have been, but was not, charged under s 5(1) with carrying or using the firearm. Instead, he was charged with its possession. He is to be sentenced for the offence charged, not with another offence that could have been charged. Secondly, the criminality in carrying and using the shot-gun in a public place is embraced by the offence of intentionally causing serious injury, as constituted by the shooting. Thus, to punish him on the firearm offence for his carrying or use of it would be to punish him a second time for the same behaviour, which would be wrong.

46 In the result, I consider this instance of possessing a firearm as a prohibited person falling around the lower-to-middle range of seriousness for the offence.

47 I turn now to the mitigating factors on which Mr Afacan was entitled to rely.

48 First, Mr Afacan pleaded guilty to the offences charged.

49 As indicated earlier, the guilty pleas were entered on the second day of preliminary argument at trial. On the face of it, they were late pleas of guilty. At the contested committal hearing, however, Mr Afacan was facing the principal charge of attempted murder (as well as its lesser alternatives), to which he pleaded not guilty at the conclusion of those proceedings. It was accepted that, once Ms Hassan came into the matter following the committal, discussions between counsel led to the Director indicating that the attempted murder would be withdrawn and that Mr Afacan would plead guilty to intentionally causing serious injury and possession of a firearm as a prohibited person. Mr Afacan was also concerned to know that, were he to plead guilty, the charges would be withdrawn against Ms Stephens. As Ms Hassan explained, from the Director's standpoint, each accused's matter was adjudged separately and on its own merits. In any event, the discussions continued up until the commencement of the trial, and Mr Afacan pleaded guilty to the new indictment the instant it was filed.

50 The pleas of guilty have avoided what would have been a substantial trial and have thereby spared the witnesses the ordeal of giving evidence in such a case. I also accept that the pleas of guilty signify an acceptance of responsibility by Mr Afacan and a willingness to facilitate the course of justice.

51 Further, the plea of guilty to the charge of intentionally causing serious injury was entered in meritorious circumstances, in at least three respects. First, for the reasons I have set out earlier about the nature of the injury suffered by Mr Kala, a jury might have failed to be satisfied beyond reasonable doubt that the injury actually suffered amounted to a serious injury. Secondly, given the nature of the pellets - birdshot - and the distance from which the shot was fired, a jury might have doubted an intention to cause serious injury and been satisfied of, say, only recklessness as to causing serious injury, an intention to cause injury or recklessness as to injury. Thirdly, the forensic reality is that such arguments are easier to make good for an accused when the alleged victim of a crime is not as virtuous as he might be and is one whose credit would have been relatively easy to attack, as is the case here. In my view, to have foregone the reasonable chance of an acquittal in such circumstances renders the plea of guilty all the more significant.[15]

52 For those reasons, Mr Afacan's pleas of guilty amount to a substantial mitigating factor.

53 The second matter in mitigation is that I am satisfied that Mr Afacan is remorseful for his crimes. There are two reasons.

54 First, his pleas of guilty, and the circumstances in which they were entered, suggest that is so. Ms Hassan accepted that the pleas of guilty evinced remorse.

55 Secondly, in her report, the psychologist Ms Lechner said that Mr Afacan "expresse[d] regret for his actions", made "no attempt to shirk responsibility or minimize the seriousness of his actions" and said that he "fe[lt] sorry for [Mr Kala], ... learnt about the ripple effect" and that he had "a lot of empathy for his family".[16] I accept Ms Lechner's observations, her account of what she was told and the truth of what she was told.

56 The third matter in mitigation is that Mr Afacan was only 23 at the time of the offences and has only just turned 25 recently.

57 Relative youth is a relevant consideration in this case. I say "relative" youth because it is not as if he were only 18 at the time. But 23 is still relatively young. All else being equal, a younger person is less likely to think things through or consider consequences. In my view, despite the fact that he has a significant criminal history, including for violent offences, to which I shall come in a moment, Mr Afacan, now at 25, is at an age where his values and attitudes are still being formed. It is of course a pity that he has been developing, and will continue to develop, those values and attitudes in gaol, which is hardly the best place for a younger person to mature. But that, of course, is an unavoidable consequence of the nature and gravity of his crimes, both past and present. He must go to gaol, and for a substantial period. One of the great aims of the criminal law, however, is to rehabilitate younger offenders. And Mr Afacan is still young enough to persuade me that rehabilitation is an important consideration in his case.

58 The fourth matter in mitigation is that I am satisfied that Mr Afacan has good prospects of rehabilitation. I do not say those prospects are excellent or very good, but just good. My reasons for that conclusion follow.

59 First, Mr Afacan's pleas of guilty, his remorse and his relative youth tend in that direction.

60 Secondly, he has shown that he can work and that he is employable. For example, he has worked for his family in their kebab shop in St Albans. He was a very talented soccer player in his youth, which required a good deal of application, but ultimately he did not pursue a professional career in the sport. Before he was gaoled in 2012, he also worked in warehouses. After he was released on parole, he worked as a fork-lift driver with an organization called Staples Victoria. Bob Gelevski, the receiving manager for Staples, provided an impressive reference to the Court. He described Mr Afacan as an "exemplary employee", one with "excellent punctuality, reliability and performance", and one who "got on well with other employees and worked well without supervision". Mr Gelevski also said that Mr Afacan had "a very good work ethic and showed initiative when needed".[17]

61 Thirdly, Ms Lechner is of the view that, while Mr Afacan has "a fairly rigid thinking style", is "impulsive" and "tends to have a low tolerance for frustration", he has "insight and a willingness to be involved in treatment" and "a desire to learn better ways of managing conflict".[18]

62 Fourthly, as for Mr Afacan's illicit drug use, his use of methamphetamines (or "ice") seems to have been a problem for him earlier in his life, but not now. He told Ms Lechner that he was using steroids at the time of the present offending, and that they made him feel "more edgy, ... angry quicker, more narrow-minded". Whether such drug-taking contributed to his behaviour in committing the present offences is difficult to determine. But, in so far as there might have been a link, it is promising that there is no evidence that he intends to keep taking such drugs.

63 In light of the foregoing, but for his history of criminal offending, I would have concluded that Mr Afacan's prospects of rehabilitation were substantially stronger. That history, which includes the following matters, suggests that specific deterrence is still a significant consideration in sentencing Mr Afacan, albeit that the need for such deterrence is moderated by his remorse and good prospects of rehabilitation. Before he turned 18, Mr Afacan had sustained findings of guilt or convictions for armed robbery and intentionally causing injury, as well as various driving offences. In 2011, at age 20, he received a suspended sentence of imprisonment for trafficking amphetamines, dishonesty offences and assault with a weapon, and was fined for possessing a longarm without a licence, possessing a prohibited weapon, damaging property, resisting police and other offences. Then, as I said earlier, in February 2012, when aged 21, Mr Afacan was sentenced in the County Court to a total effective sentence of four years' imprisonment with a non-parole period of two years for various offences of violence (including a threat to kill) committed in July-August 2011, when he was aged 20.

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

65 In my view, general deterrence, denunciation and just punishment are important considerations in sentencing for the offences committed by Mr Afacan. Anyone - especially one prohibited from possessing a firearm - minded to take up a sawn-off shot-gun and shoot and seriously injure another with birdshot in a public street, with the intention of causing such injury, should understand that this Court denounces such behaviour and usually will impose a substantial term of imprisonment upon conviction. As I have explained, however, given the particular circumstances which preceded the shooting, Mr Afacan's moral culpability is somewhat reduced, which in turn moderates the weight to be accorded to curial denunciation and just punishment.

66 While the apparent failure of previous criminal sanctions, including imprisonment, to deter Mr Afacan from re-offending leads me to conclude that specific deterrence is still a significant consideration in sentencing him, as I indicated earlier, the need for such deterrence is moderated by his pleas of guilty, remorse and good prospects of rehabilitation.

67 By reason of his previous conviction and prison sentence for making a threat to kill, Mr Afacan is to be sentenced as a "serious offender" on the charge of intentionally causing serious injury, which is a "relevant offence".[19] Section 6D(a) provides that, if the Court, in sentencing a serious offender for a relevant offence, considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence, must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed. Given the nature of Mr Afacan's offence of intentionally causing serious injury, I consider there would have been some need to give weight to protection of the community when sentencing for that offence in any event.

68 Rehabilitation also remains an important consideration. That is so not only because Mr Afacan is still relatively young, but also because he has good prospects of rehabilitation. In my view, it is also important to recognize the interplay between rehabilitation and protection of the community. The sentence to be imposed in this case is one which will see Mr Afacan returned to the community ultimately. It is therefore in the community's interests that his prospects of rehabilitation be maximized, so that, when he does return to the community, his chances of remaining offence-free and of achieving successful reintegration are the best they reasonably can be. Those chances will be maximized if the sentence reflects a sensible balance between the purpose of rehabilitation - and therefore protection of the community in the longer term - and the other sentencing purposes.

69 Section 5(3) of the Sentencing Act 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. This provision, and its more specific iterations in the sub-sections that follow it in the Act, reflect the common law principle of parsimony. I have applied these provisions and this principle when considering the appropriate sentences in this case.

70 In so far as I have been able to determine them, I have had regard to current sentencing practices for intentionally causing serious injury and possession of a firearm as a prohibited person.

71 The most recent Sentencing Snapshot for the offence of intentionally causing serious injury[20] reveals that the average sentences for the period 2008-09 to 2012-13 ranged from three years and eight months' imprisonment in 2008-09 to four years and eight months' imprisonment in 2012-13; and that the median sentence over that period was four years' imprisonment.

72 Of course, those statistics are of limited utility, mostly 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 or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.

73 I have also considered various decisions of this Court and the Court of Appeal concerning intentionally causing serious injury,[21] although I found none of particular assistance as a comparator.

74 There is no Sentencing Snapshot published by the Sentencing Advisory Council for the offence of possession of a firearm by a prohibited person. But I have considered some decisions of the Court of Appeal concerning this offence.[22]

75 It is almost always difficult usefully to compare sentences imposed in other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished. Nevertheless, I have found these sentences, and the reasons given for imposing them, instructive in gauging the order of sentence imposed for the offences in question, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. In the end, however, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentences for Mr Afacan's offences.

76 I have also considered the question of totality.

77 In addition to the usual features of totality that apply in sentencing for multiple offences, two particular considerations are applicable in the present case. One is the effect of s 6E of the Sentencing Act. Section 6E provides that "[e]very term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term".

78 The other consideration arises out of the following circumstances. Upon his arrest on 5 November 2014, Mr Afacan's parole was cancelled, such that he then began serving a "parole sentence" of 593 days' (or about nineteen-and-a-half months') imprisonment, which was the unserved portion of his parole. As at today's date, he has now served in the order of 409 days (or about thirteen-and-a-half months) of the 593-day parole sentence. Thus, he has about 184 days (or about six months) of the parole sentence still to serve. Ms Hassan and Mr Tyrrell accepted that, after I impose sentence, by operation of ss 15 and 16(3B) of the Sentencing Act, unless I were to order otherwise (which was not urged upon me; nor do I think it is open to do so), the potential service of that six-month balance of the parole sentence will be deferred until the completion of the non-parole period I fix, and in effect will be added to the total effective sentence I pass.

79 While I must have regard to the legislative policy behind ss 6E and 16(3B), I also must ensure that the individual sentences, the total effective sentence and the non-parole period I impose, when considered in conjunction with the thirteen-and-a-half months he has already served of the parole sentence and the further six months that in effect will be added to the total effective sentence I pass, represent a just and appropriate measure of the total criminality involved. That is a difficult thing to do, because it requires me to make some assessment of how, as a matter of totality, part of the sentence imposed in 2012 for other offences and the whole of the sentence I am about to impose for the new offences should relate to each other, while at the same time recognizing the legislative policy behind ss 6E and 16(3B), and the consideration that Mr Afacan's offending is aggravated by the fact that he committed the new offences in breach of the very parole which is now part of the parole sentence he has been required to serve.

80 I shall return to these matters when announcing sentence.

Sanar Ghanim - Nature/gravity of offences and mitigating factors

81 At this point, I shall turn to the nature and gravity of Mr Ghanim's offences, then to the factors on which he relies in mitigation and then to the relevant sentencing purposes and some other relevant considerations in his case.

82 Reckless conduct endangering life can be a rather serious offence. It carries a maximum penalty of ten years' imprisonment.[23]

83 A person commits the offence if he or she engages in conduct which a reasonable person, in the same position, would have realized was placing, or may have placed, another person at an appreciable risk of death; and he or she foresaw that an appreciable risk of death was a probable consequence of that conduct.

84 In the present case, the charge was pleaded on the basis that Mr Ghanim recklessly engaged in conduct that placed - not that it may have placed - Mr Kala in danger of death, in that, knowing that he was armed and had already fired a shot, he encouraged Mr Afacan to shoot Mr Kala.

85 Ms Hassan, on behalf of the Director, accepted that Mr Ghanim was not aware that Mr Afacan had the gun until it was fired the first time.

86 Mr McQuillan, who appeared for Mr Ghanim, submitted that I should not be satisfied that his client was aware that Mr Kala had even been struck by the first shot when he uttered the words, "Shoot him again." In effect, his submission was that I could not exclude the reasonable possibility that those words conveyed something other than an implied admission of knowledge that Mr Kala had been struck by the first shot. He pointed to the fact that there was evidence that Mr Ghanim was standing behind Mr Afacan when the first shot was fired, so that it could not be said he saw Mr Kala struck (because his line of sight may have been obscured by Mr Afacan). Further, there was no evidence that Mr Kala was bleeding immediately after he was shot, or, in any event, that Mr Ghanim saw any such blood that might have been there in the instant after he was shot and before he turned to run to his car. While there is evidence that Mr Kala was bloodied when he reached the industrial site to which he fled, Ms Hassan conceded that he might have looked much worse at that point than he did immediately after he was shot.

87 While I think that, in circumstances where a person has been shot, it is unlikely that a person in the vicinity would utter the words "Shoot him again" unless he realized the victim had been struck by the shot, on the material before me, I am not able to exclude the reasonable possibility that Mr Ghanim did not know that Mr Kala had in fact been struck by the first shot.

88 To my way of thinking, there is, in any event, a legal, if not a factual, difficulty in taking too literally - or perhaps reading too much into - the words "Shoot him again" when Mr Ghanim is to be sentenced for an endangerment offence rather than the offence previously charged or another offence. If Mr Ghanim's intention were that Mr Kala actually be shot, then it sounds very much like he has encouraged an attempted murder, or at least an attempt to cause serious injury intentionally. But, to sentence him as if that were so would be contrary to the principle that an accused is to be sentenced only for the offence to which he has pleaded guilty and not for a more serious offence, even if the evidence might establish the more serious offence.[24]

89 Accordingly, I think the safer and proper course is to sentence Mr Ghanim on the basis that he encouraged Mr Afacan to fire a second shot in the direction of Mr Kala and that he did so when Mr Kala was speeding away in his car. In doing so, Mr Ghanim was a party to the firing of a shot which a reasonable person, in the same position, would have realized was placing Mr Kala at an appreciable risk of death (had the shot penetrated the vehicle and struck him in a vital area), and he foresaw that an appreciable risk of death was a probable consequence of that conduct.

90 Mr McQuillan submitted that this example of the offence fell towards the lower end of gravity. Ms Hassan submitted it was a "mid to serious example". In my view, it is still a serious offence but one that falls around the middle range of gravity. There are several reasons.

91 First, to encourage one person to fire a sawn-off shotgun at another when he is in a car in a public street, and believing that an appreciable risk of death was a probable consequence, is very culpable behaviour. On the other hand, the small size of the pellets meant that, unless they penetrated through the car windows and then struck Mr Kala in a vital area, which itself seems unlikely, the risk of death was perhaps only at the minimum level required to make out the offence.

92 Secondly, however, it is plain that that shot, just like the first, was intended by Mr Ghanim to terrify Mr Kala, and had precisely that effect.

93 Thirdly, on the other hand, there could be no premeditation in Mr Ghanim's behaviour, as the Director accepts he was not even aware Mr Afacan had the gun until the first shot was fired.

94 Fourthly, again, Mr Kala was unarmed and alone while being pursued by two men acting together at this point,[25] one of whom had a sawn-off shot-gun, albeit he was less vulnerable when he was in his car than he had been in the moments before.

95 Fifthly, while it was not Mr Ghanim's sister who was threatened, I accept that he went to this idiotic meeting out of a misguided sense of loyalty to his friend Mr Afacan, and that his encouragement of the second shot was affected by the same motive.

96 I turn now to Mr Ghanim's cultivation of ten cannabis plants.

97 The offence carries a maximum penalty of fifteen years' imprisonment, or only one year's imprisonment if the Court is satisfied that the offence was not committed for any purpose related to trafficking.[26] Mr McQuillan accepts that the higher maximum penalty applies in this case. This seemed to me to be a proper and inevitable concession, given that Mr Ghanim is said to have admitted to the psychologist Ian Mackinnon, whose report was received in evidence, that he "became involved in cannabis cultivation in order to help out a friend who was in serious debt".[27] Mr McQuillan pointed out that his instructions were that the words "who were in serious debt" were added by the psychologist in error. But he did not seek to persuade me that the lower penalty would apply.

98 The number of plants (ten) is modest, as is their (green) total weight (4.2 kilograms). When police found them, Mr Ghanim admitted the plants were his.

99 In my view, this is an offence of cultivation towards the lower end of the scale of seriousness. A charge of this nature would have been heard in the Magistrates' Court absent its connection with the search upon Mr Ghanim's arrest on the more serious charges.

100 I turn now to the mitigating factors on which Mr Ghanim was entitled to rely. As it happens, the same four mitigating factors that applied to Mr Afacan apply with at least equal force to Mr Ghanim, or with greater force in respect of two of those factors.

101 First, Mr Ghanim pleaded guilty to the offences charged.

102 Mr Ghanim's plea of guilty to reckless conduct endangering life was not an early plea, but was entered the instant the more serious charges were withdrawn.

103 His plea of guilty to the cultivation charge was indicated at an early stage.

104 The plea of guilty to the reckless conduct charge has avoided what would have been a substantial trial and thereby has spared the witnesses the ordeal of giving evidence at such a trial. I also accept that both pleas of guilty signify an acceptance of responsibility by Mr Ghanim and a willingness to facilitate the course of justice.

105 Further, the plea of guilty to the charge of reckless conduct was entered in meritorious circumstances, in at least two respects. First, for the reasons I have set out earlier about the risk of death, a jury might have failed to be satisfied beyond reasonable doubt that the second shot actually gave rise to the necessary level of risk or that Mr Ghanim had the necessary foresight of such risk. A jury might not have been inclined to convict of even the lesser alternative of reckless conduct endangering serious injury. Secondly, the same forensic reality I spoke of earlier may have assisted Mr Ghanim's cause in this regard. In my view, to have foregone the reasonable chance of an acquittal in such circumstances renders the plea of guilty all the more significant.[28]

106 For those reasons, Mr Ghanim's pleas of guilty amount to a substantial mitigating factor.

107 The second matter in mitigation is that I am satisfied that Mr Ghanim is remorseful for his crimes. There are two reasons.

108 First, his pleas of guilty, and the circumstances in which they were entered, suggest that is so. Again, Ms Hassan accepted that the pleas of guilty evinced remorse.

109 Secondly, in his report, Mr Mackinnon opined that Mr Ghanim "expressed appropriate remorse". He recorded that Mr Ghanim also said, "I wish the whole thing never happened. Nothing good came out of it for anyone. I want to move on with it. I had no grudge against [Mr] Kala. I don't even know him."[29] I accept Mr Mackinnon's opinion, his account of what he was told by Mr Ghanim and the truth of what he was told.

110 The third matter in mitigation is that Mr Ghanim was only 24 at the time of the offence and has only just turned 25 recently.

111 The remarks I made earlier about Mr Afacan's relative youth apply with greater force to Mr Ghanim, given his less extensive criminal history, to which I shall come in a moment.

112 The fourth matter in mitigation is that I am satisfied that Mr Ghanim has very good prospects of rehabilitation. I do not say those prospects are excellent, but just very good. My reasons for that conclusion follow.

113 First, Mr Ghanim's pleas of guilty, remorse and his relative youth tend in that direction.

114 Secondly, as Mr Mackinnon noted, Mr Ghanim is an energetic and self-motivated individual who is a qualified tradesman, a small business owner, a skilled martial artist (he has had 17 professional fights in the sport of Muay Thai) and a qualified personal trainer.

115 Thirdly, Mr Ghanim has no history of illicit drug use.

116 The fourth factor that encourages me that he can rehabilitate is that Mr Ghanim strikes me as a person of great resilience. He grew up in Baghdad, Iraq. At the age of ten and against his parents' wishes, he was sent, forcibly, to an army camp to train as a child soldier under the regime of Saddam Hussein. He was shown the "art of torture". It is hard to imagine how that might affect a young boy. Happily, however, the whole family was able to flee to Syria, where they spent the next four years, and eventually came to Australia as refugees, when Mr Ghanim was 14. Within three years, he became an Australian citizen. Then he completed a tiling apprenticeship. In 2008 to 2009, he fought professionally in the sport of Muay Thai.

117 In 2010, when he was aged 20, Mr Ghanim appeared in the County Court on several counts of burglary, theft and related offences. The offending involved quite serious "ram-raid" burglaries on commercial premises committed in 2008, when he was just 17 and 18. The detail of some of the horrors to which Mr Ghanim was exposed in Iraq as a ten-year-old are contained in the judge's reasons for sentence.[30] I shall not repeat them here. Despite his youth and lack of prior convictions, and contrary to the submission that a stint in a youth training centre might be appropriate, the seriousness of the offences moved the judge to impose a total effective sentence of three years and two months' imprisonment with a non-parole period of two years and four months.

118 Despite being sent to an adult gaol for offences committed at such a young age, which might have crushed some, Mr Ghanim took every advantage of the rehabilitative options on offer in prison. In particular, while serving that sentence, Mr Ghanim completed a number of courses, including one concerning engineering and another on being a personal trainer. Then he put his newly-learnt skills to use. Immediately upon his release on parole, he began work as a personal trainer. Once he completed parole, he went into business in a spare parts shop. He now has three employees and a partner in the business. He is also attempting to set up a tattoo parlour with his partner, who is due to have their first child soon.

119 Thus, while he has a significant prior appearance for which he received a substantial term of imprisonment, Mr Ghanim has shown great resilience and a capacity to rehabilitate himself through hard work and industry.

120 Mr Ghanim also has prior findings of guilt (without conviction) for hindering and resisting police when he was 18, but has no other relevant appearances and, in particular, no prior convictions for violence.

121 I was informed that he is currently facing other serious charges of violent offending, but they are disputed and are therefore irrelevant.

122 Finally, Mr Mackinnon is of the view that Mr Ghanim does not have any inherently antisocial or criminal traits. He has a stable family and circle of friends. He has a partner who is about to give birth to their first child. While Mr Ghanim accepted that he sometimes struggles to deal appropriately with situations involving interpersonal conflict, he also accepts that he has to learn more acceptable ways of dealing with such problems. Mr Mackinnon is of the view, which I accept, that Mr Ghanim has the ability to improve in this regard.[31]

124 In my view, general deterrence, denunciation and just punishment are important considerations in sentencing for the offence of reckless endangerment committed by Mr Ghanim. Anyone minded to encourage another to fire a sawn-off shot-gun loaded with birdshot in the direction of a person in a car in a public street, with the belief that it is probable that there is an appreciable risk that the person would be killed, should understand that this Court denounces such behaviour and usually will impose a term of imprisonment upon conviction.

125 While Mr Ghanim's prior sentence for the ram-raid offences suggests that specific deterrence is of some relevance in sentencing, the need for such deterrence is moderated by his pleas of guilty, remorse and very good prospects of rehabilitation.

126 Given the nature of Mr Ghanim's offence of reckless endangerment, I consider that some weight must be given to protection of the community.

127 Rehabilitation also remains an important consideration. As in the case of Mr Afacan, so too in the case of Mr Ghanim, but with greater force, that is so not only because he is still relatively young, but also because he has very good prospects of rehabilitation. Again, as with Mr Afacan, so too in Mr Ghanim's case, it is important to recognize the interplay between rehabilitation and protection of the community. Mr Ghanim's chances of rehabilitation - and therefore protection of the community in the longer run - will be maximized if the sentence reflects a sensible balance between the purpose of rehabilitation and the other sentencing purposes.

128 As for the offence of cultivating cannabis plants, as I have said, this is a relatively minor offence. General deterrence is a purpose of some significance and so too is rehabilitation.

129 Like s 5(3) of the Sentencing Act, s 5(4C) imports the principle of parsimony, but in a more specific way. Section 5(4C) provides that "[a] court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order ['CCO'] to which one or more of the conditions referred to in ss 48F, 48G, 48H, 48I and 48J are attached". I have applied these provisions and this principle when considering the appropriate sentences in this case.

130 In so far as I have been able to determine them, I have had regard to current sentencing practices for reckless conduct endangering life and cultivation of cannabis.

131 The Sentencing Advisory Council has not published a Sentencing Snapshot for reckless endangerment but has done so for cultivation of cannabis.[32] However, the sample of sentences was so small that I found the latter report of little use.

132 I have had regard to decisions of this Court and the Court of Appeal on reckless endangerment. One recent case to which I was referred by Ms Hassan is Zogheib v The Queen.[33] The Court dismissed an appeal against a sentence of five years' imprisonment imposed following Mr Zogheib's plea of guilty to a charge of reckless conduct endangering life committed by firing three shots from a handgun at jeep occupied by two persons who were driving away from the car in which he was a passenger at speeds in excess of 140 kph. One of the shots smashed the rear windscreen of the jeep. At some stages, the cars were parallel to each other and Mr Zogheib's co-offender attempted to run the jeep off the road. At one point, Mr Zogheib aimed the gun at the other driver, who slammed on his brakes and was able to do a U-turn and get away. Mr Zogheib was on bail and serving two CCOs at the time of the offending and had prior convictions for weapons offences. The offence, while committed against people who had nothing to do with Mr Zogheib, was committed against a background of fear that the persons in the jeep may have been those who had tried to harm him on an earlier occasion.

133 In my view, Mr Zogheib's offence was substantially more serious than Mr Ghanim's offence of reckless endangerment. It involved repeated and more dangerous behaviour than that which was encouraged by Mr Ghanim and was aggravated substantially by the fact that Mr Zogheib was on bail and serving two CCOs at the time.

134 Following the plea in mitigation, I ordered that Mr Ghanim be assessed as to his suitability for a CCO.

135 In short, the authors of the report found Mr Ghanim unsuitable for a CCO, but only because of his outstanding charges. As Mr Parker, who appeared for Mr Ghanim this morning, submitted, that is an irrelevant consideration.

136 At the plea, Ms Hassan submitted that the reckless endangerment was too serious to warrant a CCO and that a gaol sentence was required. Mr McQuillan submitted that a CCO combined with a term of imprisonment would be open.

137 In my view, Ms Hassan's submission is correct. The reckless endangerment offence is too serious to warrant a CCO. A gaol sentence is required.

138 I have also considered the question of totality, or at least a principle akin to totality, in Mr Ghanim's case, in two respects.

139 First, since Mr Ghanim spent 41 days in custody for a charge that was ultimately withdrawn, it is incumbent on me to take that "dead time" into account in sentencing on the present offences.

140 Secondly, I must have regard to the way in which the sentences relate to each other. As it happens, I do not consider the cultivation offence warrants a gaol term. In circumstances where Mr Ghanim has spent "dead time" in custody on another matter, I consider it appropriate simply to convict and discharge him on the cultivation offence. Thus, the question of whether to direct concurrency or cumulation does not arise.

141 In imposing sentence on each of Mr Afacan and Mr Ghanim, while they have pleaded guilty to different offences, I still consider that I must have, and have had, regard to parity between co-offenders in respect of the sentences to be imposed for the offences arising out of the shooting.

142 I turn now to the sentences to be imposed on Tugay Afacan.

143 On Charge 1 of the first indictment,[34] the charge of intentionally causing serious injury, Mr Afacan is convicted and sentenced to five years' imprisonment.

144 On Charge 3 of the first indictment, the charge of possessing a firearm as a prohibited person, Mr Afacan is convicted and sentenced to 12 months' imprisonment.

145 I direct that the sentence on Charge 3 be served wholly concurrently with the sentence on Charge 1.

146 That makes a total effective sentence of five years' imprisonment.

149 There is no declaration as to pre-sentence detention because Mr Afacan has been serving the parole sentence since his arrest on 5 November 2014.

150 I declare that Mr Afacan was sentenced as a serious offender on Charge 1 of the first indictment, the charge of intentionally causing serious injury.

151 When regard is had to the fact that, as of today, Mr Afacan has served about thirteen-and-a-half months of the nineteen-and-a-half-month parole sentence, and that, as I explained earlier, the service of the remaining six months of that parole sentence now is effectively deferred and added to the total effective sentence I have just imposed, it is as if Mr Afacan will be serving, from 5 November 2014, a combined total sentence of six years and seven-and-a-half months' imprisonment with a total continuous period, from the same date, of four years and one-and-a-half months before eligibility for parole.

152 As to my order for concurrency between the sentences on Charges 1 and 3, I am of the view that, because the two individual offences committed by Mr Afacan were wholly overlapping in time and circumstance, because the bulk of the overall criminality is constituted by the offence of intentionally causing serious injury by shooting, and because of the considerations of totality in light of the parole sentence served and to be served, to which I shall return in a moment, the proper course is to direct that the sentence on the charge of possessing the firearm be directed to be served wholly concurrently with the sentence on the charge of intentionally causing serious injury.

153 Further, while I recognized and took into account the legislative purpose behind ss 6E and 16(3B) of the Sentencing Act and the fact that the offences were committed while on parole, in fixing the individual sentence on the charge of intentionally causing serious injury, the direction for concurrency, the total effective sentence and the non-parole period I have just imposed, I also have had regard to totality and proportionality and sought to fix a sentence that, when combined with the parole sentence served and to be served, represents a just and appropriate measure of the total criminality involved.

154 For the avoidance of doubt, in the case of Mr Afacan, the total effective sentence I have fixed as commencing from today is five years' imprisonment with a non-parole period of three years.

155 Pursuant to s 6AAA of the Sentencing Act, I declare that, but for Mr Afacan's pleas of guilty, I would have imposed a total effective sentence of seven years' imprisonment with a non-parole period of five years.

156 I turn now to the sentences to be imposed on Sanar Ghanim.

157 On Charge 2 of the first indictment, the charge of reckless conduct endangering life, Mr Ghanim is convicted and sentenced to two years and ten months' imprisonment.

158 On Charge 1 of the second indictment,[35] the charge of cultivation of narcotic plants, Mr Ghanim is convicted and discharged.

159 That makes a total effective sentence of two years and ten months' imprisonment.

161 I declare that 79 days of pre-sentence detention, including today, have been served under this sentence.

162 Pursuant to s 6AAA of the Sentencing Act, I declare that, but for Mr Ghanim's pleas of guilty, I would have imposed a total effective sentence of four-and-a-half years' imprisonment with a non-parole period of two years and ten months.

[1] Ms Afacan used Ms Suleyman's phone to send the text, but made it clear the text came from her - by preceding her warning with, "It's Tucge."

[2] Mr Tyrrell, who appeared for Mr Afacan, said that his instructions were that Mr Kala said, "Tell your sister to fuck off or I'll rape her and snap her neck" (T 18 & 20). However, Mr Afacan was recorded as telling his psychologist Carla Lechner, whose report of 29 October 2015 was before me (as Exhibit 6), that Mr Kala said, "Tell your sister to shut her mouth or I'm going to snap her neck" (T 19) - i.e. there was no mention of a threat to rape her. In the course of the plea hearing, I indicated that, while I was prepared to act on what was recorded in the psychologist's report, since it had been tendered without objection, I was not prepared to act on instructions from the Bar table about the threat to rape, absent any further evidence, particularly where Ms Hassan, who appeared for the Director, indicated that that alleged threat was not conceded (T 68 & 70-71). Following that indication, Mr Tyrrell did not seek to call any evidence about the alleged threat to rape.

[3] See the statement of Dr Peter Taylor (Depositions at pp 447-449).

[4] The victim impact statement became Exhibit 5.

[5] At this point in his victim impact statement, Mr Kala also mentions a pellet or pellets in his groin. There was, however, nothing in the prosecution opening or the depositions to indicate that a pellet entered his groin. Accordingly, I decline to act on this aspect of the victim impact statement.

[6] Exhibit 9 comprised four LEAP Reports about the charges.

[8] In so far as the firearm was in Mr Afacan's possession at the time and thereby potentially added to Mr Kala's fear, then that would be relevant to the sentence on the offence of possessing the firearm as a prohibited person as well. That said, in order to avoid double punishment, I am of the view that I should confine any punishment resulting from use of the firearm to the sentence on the offence of intentionally causing serious injury.

[9] See s 16 of the Crimes Act 1958 (Vic).

[10] Ms Hassan advised that, upon his arrest on 5 November 2014, Mr Afacan's parole was cancelled and that he "owed" 593 days to the Adult Parole Board at that time. That he "owed" 593 days, and not the full two years (or about 730 days), suggests he was not released on his earliest parole eligibility date but, rather, that he served about 137 days (730 - 593 = 137), or four-and-a-half months, in prison beyond his non-parole period of two years.

[11] See the definitions of "injury" and "serious injury" in s 15 of the Crimes Act 1958 (Vic).

[14] See paragraph (a)(i) and (v) of the definition of "prohibited person" in s 3(1) of the Firearms Act 1996 (Vic).

[15] See, e.g., R v De Macedo (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 4 February 1992) at 5-7 per Phillips CJ (with whom Beach and Gobo JJ agreed).

[16] Report of Ms Lechner, 29 October 2015 (Exhibit 6), at pp 1 & 4-5; see also pp 6-7.

[17] Reference (undated) from Bob Gelevski, Receiving Manager, Staples Victoria (Exhibit 8).

[18] Report of Ms Lechner, 29 October 2015 (Exhibit 6), at pp 5-6 & 7.

[19] See ss 6A, 6B and 6C and Schedule 1 of the Sentencing Act 1991 (Vic).

[20] Sentencing Advisory Council, Sentencing Snapshot No 156: Sentencing trends for causing serious injury intentionally, June 2014.

[21] See, for example, the list of cases in the table at the end of the judgments in Nash v The Queen (2013) 40 VR 134 at 147-159.

[22] See, for example, Haddara v The Queen [2015] VSCA 158; Riley v The Queen [2015] VSCA 259; and Zogheib v The Queen [2015] VSCA 334..

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

[24] See, e.g., R v Newman & Turnbull [1997] 1 VR 146; The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

[25] That said, Mr Afacan (perhaps curiously) is not charged with this offence and therefore is not to be punished for it. On the other hand, it could not be said, and was not said, in mitigation that he desisted after firing the first shot.

[26] See s 72B of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[27] Report of Mr Mackinnon, 7 November 2015 (Exhibit 10), at p 5.

[28] See, e.g., R v De Macedo (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 4 February 1992) at 5-7 per Phillips CJ (with whom Beach and Gobo JJ agreed).

[29] Report of Mr Mackinnon, 7 November 2015 (Exhibit 10), at p 4.

[30] R v Beto & Ghanim [2010] VCC 1284 (17 September 2010) (Exhibit 11) at [11]-[13].

[31] Report of Mr Mackinnon, 7 November 2015 (Exhibit 10), at p 4.

[32] Sentencing Advisory Council, Sentencing Snapshot No 164: Sentencing trends for cultivating a non-commercial quantity of narcotic plants, August 2014.

[33] Zogheib v The Queen [2015] VSCA 334.