IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
Suitable for Publication	
Case No. CR-23-00810

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
DANNY SZABO		

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JUDGE:	HER HONOUR JUDGE TODD	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3 October 2023 and 18 October 2023	
DATE OF SENTENCE:	24 October 2023	
CASE MAY BE CITED AS:	DPP v Szabo	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1951		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords: 	Prohibited person using a firearm; intentionally causing injury; possession of a drug of dependence; attempting to pervert the course of justice
Legislation Cited:	Firearms Act 1996 (Vic) s 5(1); Crimes Act 1958 (Vic) ss 18, 320; Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(b)
Cases Cited:	
Sentence:	Five years and six months' imprisonment with a non-parole period of three years and six months

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms M. Sargent	Office of Public Prosecutions	
			
For the Accused	Mr J. Miller	Theo Magazis & Associates	

HER HONOUR:

Introduction
1	On 26 August 2022 a man drove his car up to a pedestrian on a suburban street, got out of the car and, after a period of a few seconds, discharged a shot into the pedestrian's leg before getting back into the car and driving off. After being taken into custody, he attempted to conceal what he had done by asking an associate to destroy evidence. 
Pleas and maximum penalties
2	Danny Szabo, you have pleaded guilty to:
(a)	one charge of using a firearm while being a prohibited person, which carries a maximum penalty of 10 years' imprisonment or 1200 penalty units;
(b)	one charge of intentionally causing injury, with a maximum penalty of 10 years' imprisonment;
(c)	one charge of possession of a drug of dependence, namely methandienone, with a maximum penalty of one year's imprisonment or 30 penalty units or both; and
(d)	one charge of attempting to pervert the course of justice, with a maximum of 25 years' imprisonment.
Facts giving rise to the offending
3	A prosecution opening called, 'Amended summary for the purposes of case conference', dated 1 August 2023 provided the factual basis for your plea. That document is attached to and forms part of these reasons; I will refer to parts of it in summary form here.
4	On 26 August 2022 at approximately 7:26 pm, you drove a black BMW into the rear laneway south of Wentworth Drive, Taylor Lakes. You were in the company of at least two other people, one of whom, Bianca Berwick, was seated in the rear passenger side seat.
5	You drove to the rear of a residence on Wentworth Drive, performed a U-turn and came to a stop. 
6	At approximately 7.30 pm, you got out of the car, walked over to the rear gate of the property, and pressed the doorbell. You then walked towards the garage before returning to your car. CCTV footage from the rear of premises on Wentworth Drive shows a tattoo on the left side of your neck, and depicts you to be wearing distinctive clothing later seized by police.
7	At about 7.33 pm, Ms Berwick got out of the car and walked towards the rear garage door, calling out, 'Luke', before returning to the car a short time later. 
8	At around 7.34 pm, CCTV audio captures part of a muffled phone conversation between you and the victim, Luke Hickey, and at 7.39 pm, the victim left his house through the front door and walked out onto Wentworth Drive.
9	At about 7.39 pm, you drove away from the address and met with Mr Hickey in the alleyway intersecting with McCubbin Drive, then drove off north on McCubbin Drive as Mr Hickey proceeded to walk in the same direction. You stopped the car for a moment at the intersection of Wentworth Drive and McCubbin Drive where Mr Hickey was standing, before driving off, completing a U-turn at the roundabout and driving towards Wentworth Drive. 
10	You then stopped your car and Mr Hickey walked over to the passenger side of the car.
11	You got out of the car holding a firearm. You walked around the front of the car and stood in front of Mr Hickey. Approximately 13 seconds later, you fired a single shot at Mr Hickey hitting him in the left leg. The sound of a gunshot is captured on CCTV. This act gives rise to Charge 2 – intentionally causing injury.
12	At the time, you were a prohibited person under the Firearms Act as you were subject to a full family violence intervention order; you were also subject to a community correction order with a supervision condition. This event establishes Charge 1 – using a firearm while being a prohibited person. 
13	As Mr Hickey ran away, he dropped a number of personal belongings then ran into a nearby shop where staff called triple zero. Meanwhile, you returned to your car and drove away.
14	Police soon arrived and a number of personal items were seized, including Mr Hickey's mobile phone.
15	Mr Hickey was treated by Ambulance and taken to the Royal Melbourne Hospital. He sustained a 'through and through' gunshot wound to his leg. Mr Hickey's injuries did not require surgery; he remained in hospital overnight; the wounds were dressed and he was given intravenous antibiotics to prevent infection.
16	You were arrested on 1 September 2022 and gave a predominantly 'no comment' record of interview. A car you had been driving prior to your arrest, a silver Ford, was searched by police and they found several items, including the distinctive cap and shoes depicted in the CCTV footage, as well as a Red Bull can containing 118 blue tablets. Analysis later revealed these tablets to contain methandienone with a net quantity of 35.1 g. This gives rise to Charge 3 – possession of a drug of dependence.
17	Following your arrest, you were remanded in custody. Investigators monitored prison calls made between you and Rebekah Montana, and these communications give rise to  Charge 4 – attempting to pervert the course of justice. A summary of them is as follows: 
(a)	On 7 September 2022, you contacted Ms Montana and directed her to 'get rid of' and 'burn' your clothes and your phone, and to remotely erase material on your phone. During this call, the two of you discussed that 'there shouldn't be' statements – the prosecution allege that this was in reference to Mr Hickey.
(b)	On 8 September 2022, you contacted Ms Montana and discussed her 'ex', referring, the prosecution allege, to Mr Hickey, stating, 'tell him, you know, like 'Tell 'em the truth'. 
(c)	From 9 to 11 September 2022, you contacted Ms Montana on several occasions, directing her to delete your Snapchat and erase your phones. On 11 September 2022, you stated, 'I just have to make sure my phone thing's done, my Snapchat's gone and that's it'.
(d)	On 16 September 2022, you stated, 'just get in touch with that dickhead that messaged you while I was in gaol', which the prosecution allege is in reference to Mr Hickey.
(e)	On 20 September 2022, you said, 'someone needs to speak to him and tell him that – to say the truth – just say it wasn't me, you know, and whoever did shoot him or whatever happened, it was an accident'. The prosecution allege this was again in reference to Mr Hickey.
(f)	On 12 October 2022, you contacted Ms Montana and stated, 'And when fuckin' the bloke comes to court and tells 'em that it wasn't me, you know what I mean, and tells 'em the truth I'm going home', referring again to Mr Hickey.
Impact on victim
18	Mr Hickey did not provide a victim impact statement, but I infer, safely I think, that the event was a terrifying one for him, and that he underwent treatment in hospital for a wound which was no doubt painful.  I take this impact on your victim into account on this sentence.  
Criminal history
19	You have admitted a range of prior convictions, including relevantly, possessing a firearm while being a prohibited person, intentionally causing injury, and recklessly causing injury and possession of drugs of dependence. 
20	Your most serious sentence was delivered in this Court in 2017; the charges were aggravated burglary, and common assault, among others, for which you received a sentence of imprisonment of four years and six months with a non-parole period of three years.
21	Your most recent sentence was for some minor drug offences dealt with by a sentence of imprisonment imposed in the Magistrates' Court in July 2022; the sentence also attached a community correction order of 24 months' duration, which I infer was the order you were subject to when you committed this new offending. 
Nature and gravity of the offending
22	The objective gravity of the offence of being a prohibited person in possession of a firearm and intentionally causing injury are informed by the following features:
•	you were on a CCO at the time of your offending;
•	there was some premeditation in terms of the intentionally causing injury charge, in that you appear to  go searching for Mr Hickey and approach him, so this confrontation, however it began and whatever was intended, did not arise spontaneously;
•	you carried a firearm, you were a prohibited person at the time, and you discharged it directly into Mr Hickey's leg;
•	it took place in a suburban area where other members of the public may have been exposed; and
•	no firearm was recovered. 
23	The gravity of the attempt to pervert the course of justice informed by these features: it was sustained and persistent but I note low level and unsophisticated.
24	I note that the injury to Mr Hickey resolved, and was, in relative terms for gunshot injury, on the lower end of injuries. This was perhaps more as the result of good fortune than good management, but allows the assessment of the intentionally causing injury charge not to reach the upper range for that offence. However the circumstances of the injury's infliction, with a firearm, by shooting, after seeking out the victim, are very serious. 
25	All offences against justice are serious, they seek to undermine the process that protects the community from harm. Your offending was 'simple' in that you sought to evade the consequences of what you had done; there are very grave forms of this offence and yours is not among them. 
Personal circumstances
26	You are 31 years old. 
27	You have a younger sister, an older half-sister to your father, and a younger half‑sister to your mother. 
28	Growing up, you moved back and forth between your parents, until you moved in with your father full time at about the age of 11. You describe your mother struggling with drug use and inflicting serious violence upon you. Your father also used drugs and sold drugs; you would go home and 'see cash, drugs and guns, people asleep everywhere'.
29	You recall that, at age 12, your father would get you to drive his car; he would steal a car and you would be instructed to follow him home. At age 15, your father recruited you to pick up drug debts, and assist him trafficking in drugs. You would comply in order to gain approval from your father. 
30	When you were 14, your father introduced you to GHB, and when you were 17, you started injecting ice, and later, heroin. 
31	Your mother moved to live in the US when you were 17 or 18 years old and you no longer have any contact with her.
32	You attended seven different primary schools, and then attended Taylors Lakes Secondary College, leaving at Year 9 level.
33	Over the last six or seven years, when not in custody, you have been employed from time to time mostly in concreting.
34	You have an 11-year-old son named Rodney, who now lives with his mother's family.  You last saw him over a year ago, before your remand, and have not spoken to him since. 
Matters in mitigation
Plea
35	You have pleaded guilty and this is a very important matter in mitigation of your sentence. 
36	Further, you have entered those pleas in the period, perhaps the latter stages of the period, when pleas of guilty draw for you an additional and palpable discount on account of the need to reduce burdens on court lists caused by the pandemic. I do apply this additional matter in your favour. 
Courses in custody 
37	It was put on your ultimate plea that your insight into the drug addiction that has caused much of your difficulty in life (though you were emphatic in your denials that it was underlying your most recent offending) is growing, and that while in custody you have started to address the problem both via pharmacological and by counselling treatment.
38	Your offending took place approximately six weeks after your last sentence of imprisonment ended. 
Psychological material
39	A psychological report prepared by Mr Ian McKinnon dated 3 September 2023 was tendered on your plea. Ultimately only a broad and general reliance was placed on this material by your counsel. 
40	Mr McKinnon diagnosed complex post-traumatic stress disorder in you arising out of your background of childhood instability.
41	However, the symptoms of this condition were not said to be substantially operative on you at the time of your offending, but rather the main contributor to your offending, in the opinion of Mr McKinnon, was your antisocial and criminal traits.
42	No other specific legal submissions were advanced on the diagnosis of the complex post-traumatic stress disorder. It was not argued that the mitigation of a ‘Verdins’ kind was engaged, but simply that the psychological health remains generally relevant to your sentence, and I accept that. 
43	The prosecution made two challenges to the psychological material. Essentially, it was argued that the Court should be cautious about applying background disadvantage in mitigation in this case because some aspects of what you told Mr McKinnon in the process of the creation of that report were either not present, or perhaps contradicted, in an earlier report tendered on the plea hearing before Judge Gucciardo in 2017. The other challenge I discerned was as to whether the complex post-traumatic stress disorder was a reliable diagnosis, and if so was it operating at the time of the offending.
44	Mr McKinnon was cross-examined at the plea hearing. It seemed to me that the PTSD diagnosis was arrived at lightly and less rigorously than it ought to have been. No formal testing was undertaken and reported symptoms assumed the status of diagnostic criteria. 
45	Because of the way Mr Miller relied on this material, and because I was not in a position to make findings of fact as between an earlier psychological report authored by Ms Lechner, and those in the later report authored by Mr McKinnon, these issues do not ultimately have to be resolved. I note parenthetically that it was appropriate for some challenge to the contents of the report to be made and it was of assistance. 
46	As I said, I do not have to resolve these challenges. The report is advanced merely as personal background and to set out some disadvantage you have suffered as a result of your unstable childhood, and I accept that that has been generally the case. Although most of that information is entirely on your own self-report, there are some objective features that lend some credibility to that narrative. For example, I understand it is not in dispute that your father was committed to custody in 2018 or 2019.
47	I do take into account your background of childhood instability and apply that in a general and broad way in mitigation of your sentence; the other side of this argument, which I must also incorporate into this sentence, is that it brings a weightier consideration to the role for community protection.
48	Other medical records are perhaps more useful in my assessment. You have sought and engaged with drug treatment while in custody, and a number of Justice Health documents were relied upon. You have also sought and engaged with psychological and psychiatric treatment while in custody. You have accepted a prescription for depression; you have undergone an episode of psychological counselling, from which you were discharged. These matters are significant. They indicate that at least while you are stable in custody you are prepared to focus on the reasons for your being there. 
Remorse and insight
49	You maintained for a time that your offending was responsive to the victim's possession of a knife. You have pleaded guilty, and in the circumstances your earlier account has only tepid credibility. Your pleas are important, but I do not find more extensive remorse in your favour. 
Current sentencing practices
50	I have had regard to current sentencing practices, in particular for intentionally causing injury and for the firearms offence – no case is particularly like yours but I sentence you in that landscape. 
Purposes of sentence
51	There is a particularly powerful need for sentencing for the misuse of firearms to make it clear that people who use firearms while being prohibited from doing so will face significant loss of their liberty. Given your history, I find there is some need for specific deterrence; Mr Szabo, the sentences keep getting longer until you stop.  It is really as simple and as difficult as that. I have already referred to the role for community protection. Through this sentence your offending is denounced; your actions in shooting another person were just outrageous.  
52	Similarly the community expects attempts to undermine the integrity of the justice system to receive proper punishment. 
53	Regarding totality, I am careful not to doubly punish you for Charges 1 and 2 – the infliction of injury and the use of the firearm as a prohibited person, and I take that into account in sentencing you for each separate charge and in directing cumulation. 
Submissions of the parties
54	Both parties made realistic submissions in this case; it was clear that the only sentence open to the court involved the imposition of a head sentence with a non-parole period. 
Disposition
55	On Charge 1, using a firearm while a prohibited person, you are convicted and sentenced to two years and 10 months' imprisonment. 
56	On Charge 2, intentionally causing injury, you are convicted and sentenced to four years and four months' imprisonment.
57	On Charge 3 possession of a drug of dependence you are convicted and sentenced to seven days' imprisonment. 
58	On Charge 4, attempt to pervert the course of justice, you are convicted and sentenced to one year and eight months' imprisonment. 
59	Charge 2 is the base sentence, I direct that eight months of the sentence on Charge 1 and six months of the sentence on Charge 4 be served cumulatively upon each other and upon the sentence on Charge 2, resulting in a total effective sentence of five years and six months' imprisonment. 
60	I direct that three years and six months be served before becoming eligible for parole. 
61	I declare that 418 days of presentence detention have already been served pursuant to this sentence.
Section 6AAA
62	I indicate that had you been found guilty after trial rather than pleaded guilty I would have imposed a sentence of seven years and two months with a non-parole period of four years and eight months.
63	I make the order for the disposal of the seized drugs as sought.  Counsel, have I missed any orders?
64	MS SARGENT:  No, Your Honour.
65	HER HONOUR:  Mr Miller, if you want a moment to discuss the sentence with your client my staff will assist you.  Thank you for your help.
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