Director of Public Prosecutions v Algie

[2017] VCC 258

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-01790

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAVIN ALGIE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	16 March 2017
CASE MAY BE CITED AS:	DPP v Algie
MEDIUM NEUTRAL CITATION:	[2017] VCC 258

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr P. Triandos
For the Accused	Mr N. Goodfellow

HIS HONOUR: 

1Gavin Kurt Algie, you have pleaded guilty to one charge of conduct endangering life, one charge of threat to inflict serious injury, three charges of threat to kill, one charge of false imprisonment, one charge of destroying property, two charges of common assault and one charge of negligently dealing with proceeds of crime.  Those crimes carry maximum penalties of ten years, five years, ten years, ten years, ten years, ten years, five years and five years respectively.

2You are also being charged with uplifted matters of assault with a weapon, unlawful assault, a loaded firearm in a public place, fail to store a firearm securely, fail to store ammunition and driving an unregistered vehicle.  Those crimes carry maximum penalties of three months, three months, 12 months, 12 months, monitoring and monitoring. 

3You pleaded guilty at an early opportunity to a settled indictment and I accept that that plea of guilty is accompanied by an intense - as has been described -remorse and you must also of course get the utilitarian benefit of that plea of guilty. 

4Importantly in this situation you have no prior convictions and that augurs very much in terms of your future rehabilitation. 

5You have now been in custody for a significant period of time, some 216 days as indicated by your counsel.  I make it very clear from the outset that this is serious offending indeed and only an active custodial sentence of significant proportions could possibly be imposed.  The offending I will go through in some detail because of, as I say, the seriousness of it.

6You were, at the time of the offending, 44 years of age and resided with your wife and two children.  You had firearms on your property at Callignee. 

7On 21 March you had a rostered day off from work and spent the day at home.  At approximately 3 pm your wife left home to go to work at Woolworths in Traralgon.  You remained home and consumed alcohol with your son.  At approximately 11.20 pm you left home and drove to the Woolworths Supermarket in Traralgon with your son.  Your wife observed you walk into the supermarket and she formed the view that you and your son had both been consuming alcohol.  You wanted more alcohol and she tried to remonstrate with you.  You were clearly intoxicated and returned to the supermarket yelling and screaming in reference to an incident that just occurred outside.  Your wife told you to leave the supermarket and you told her to "Fuck off, I'll drive my own car home."  You left the supermarket and drove home.

8A short time later, around about quarter to one in the morning, your wife arrived home.  You were out in the shed.  You asked your wife if she purchased any alcohol for you. She said that all the liquor outlets were closed.  You said that you were going to go into town and break into a shop in order to obtain alcohol.  She pleaded with you not to do so.

9She requested that you go to bed to get some sleep.  She asked you for the keys to the car to prevent you from driving anywhere and you hit her with an open hand to her left ear which made her ear ring before giving her the keys.  That is the summary offence of unlawful assault.

10As she was walking past you into the shed next door to retrieve the car keys you picked up a .22 calibre firearm that was next to the car.  That gives rise to the "Fail to store a longarm correctly."  She became worried and started to walk back towards the house.  You followed her with a firearm pointed in her direction and told her that she needed to "Fuck off and get to bed." 

11As she was walking towards the front of the house you were close enough to her that you could touch her.  You then discharged that firearm in a drunken state past her right ear which made her ear ring.  That gives rise to Charge 1 on the indictment of "Conduct endangering life." 

12She entered the house and sat on the floor near the laundry not knowing what to do.  You followed her into the house still carrying a firearm and were screaming at her demanding to know if she had contacted the police.  She told you she had not. You then picked her up by the collar and pushed her down the hallway telling her to go to bed.  She sat on the bed in shock.  You put the firearm onto the bed and removed your 12 gauge shotgun from under the bed.  That is a charge of "fail to store a longarm correctly." 

13You walked out the front steps of the house and began to load the shotgun.  She tried to convince you to put it away.  You told her that if she did not go to bed you would show her what sort of damage the gun would do to her - Charge 2, threat to inflict serious injury - and a police car, if it arrived.

14She returned to the bedroom, you followed her and grabbed her mobile phone from her.  You then went outside and commenced discharging the shotgun before returning to the house and making demands for the car keys.  Upon locating the keys your wife threw them towards you and told you to go which made you angry.  You then pointed the shotgun at her.  She pleaded with you to leave.  Assault with a weapon.

15You walked to your son's bedroom and spoke to him.  He got up and went outside with you.  You then told your wife if she stuck her head out of the door you would shoot her.  Charge 3, threat to kill.

16While still holding the shotgun you entered your daughter's bedroom and took her mobile phone.  Clearly that was all done so police could not be contacted.  You and your son then shot pot plants outside the house.  As you were sorting through cartridges you found a cartridge with the letter "G" in the title and commented, "G, this must mean Georgie" that being your wife's name.

17You used the shotgun to destroy an external light that was fitted at the corner of the house.  Once the shooting had ceased your wife could hear music coming from the shed.  She ran from the bedroom into the dining room to grab her Samsung Tablet before returning to the bedroom where she closed the door and sat behind it to block it.  She then downloaded a number of social media applications in order to contact someone to help her.

18At approximately 2.06 am she used a Facebook messenger to contact her work colleague, a Martin Power and asked him to call the police.  You said that your "hubby" was having a breakdown and got his guns out.  Please help. 

19Over the next five hours Mr Power kept in regular contact with your wife over Facebook Messenger and was relaying messages from her to the police and vice versa.  Your wife decided to go into your daughter's room and sat against the door to stop you getting inside.  She told Mr Power your phone number, she then went and locked the doors to the house before returning to her daughter's room.  She told Mr Power she was scared that if you saw that she had locked the doors you might shoot and she was worried that you would shoot police officers.

20A police sergeant called your phone and spoke to you. You were extremely agitated and sounded intoxicated.  You were yelling abuse at him through the call.  You told him that you had a shotgun with you and it was loaded and ready to go and the police turned up you were going to give them "one hell of a show." You told the sergeant that there were no fatalities but there would be if police turned up.

21At some point your wife started hearing noises from the shed including gunfire and then heard the back door open.  You entered the house, you were yelling and screaming and asking where she was.  She told Mr Power, "He's still got the gun.  Just heard him cock it."  Your wife told you she was in Caitlin's room and she was concerned that if she did not you would start to randomly shoot inside the house. 

22You forced the door open and fell on top of your wife whilst holding the shotgun.  You pointed the shotgun at her and demanded to know why the police were on the phone wanting to talk to you.  Common assault.

23She begged you not to shoot her in front of your daughter and asked you to leave.  Charge 7, common assault.

24You left with the shotgun, she barricaded the door to your daughter's room with the chair and sat in it.  She heard a car start up and head out the driveway.  She told Mr Power, "I'm terrified for everyone's safety."  She locked the doors.  You drove from the premises in your car.  It was unregistered and had stolen number plates on it or whatever.  In any event, at approximately 2.20 am a number of police units attended a rendezvous point at the intersection of the Highland Highway and Traralgon Creek Road and Traralgon South in response to the Triple 0 call that was made by Mr Power.  That included Senior Constable Worsthorne and Constable Culliver who were working nightshift together.  They arrived in marked police divisional van driven by Senior Constable Worsthorne. 

25During the phone conversation between the Sergeant and you, you began screaming abuse into the phone stating you could see four cars heading towards your address and questioning why police were attending.

26The Sergeant heard a clicking sound in the background and you stated you were ready for the "Dog coppers. The fucking rats."  And that you were about to "start the show."  You continued to be extremely aggressive. 

27The Sergeant then heard a gunshot in the distance followed by the sound of the vehicle revving.  At approximately 3 am, Senior Constable Worsthorne and Constable Culliver arrived at another rendezvous which is closer to your premises.  They exited their vehicle and they heard the firearm being discharged.  At approximately 3.25 am they also heard the vehicle revving loudly.  They received notification that you were leaving a nearby address.  All police members who were there rushed back to their vehicles and drove away to various points on Neaves Road where they remained stationary. 

28A short time later Senior Constable Worsthorne and Constable Culliver observed you driving along Neves Road straight towards the front right side of their vehicle.  You were holding the shotgun out of the driver's side window.  Constable Culliver ducked while Senior Constable Worsthorne moved the vehicle forward in order to avoid a collision with you.  He drove forward and a short distance before stopping in order to contact police communications to inform them of what happened. 

29Before Senior Constable Worsthorne could make that contact you reversed your vehicle at a fast rate of speed back towards the police vehicle and stopped directly beside it waving a large firearm in your right hand.  You shouted erratically, "Tell your mates to fuck off and leave me alone."  You then pointed that loaded firearm at Senior Constable Worsthorne and Constable Culliver.  You were less than a metre away and your firearm touched the police vehicle.  The window was open and communication was clear.  Charges 8 and 9 of threat to kill.

30The two police officers were in fear for their lives, understandably.  Senior Constable Worsthorne then removed a firearm from his holster and pointed it towards you however, it was concealed behind the driver's door. He yelled, "Stop fucking pointing the firearm at us."  He observed that your son was sitting at the passenger seat of your vehicle and he could see out of the corner of his eye that Constable Culliver was terrified.

31You shouted, "Put your shooter away" and pointed the firearm at Senior Constable Worsthorne's head.  Senior Constable Worsthorne responded, "Well stop pointing the fucking gun at me."  Senior Constable Worsthorne contemplated shooting you, Mr Algie, but was aware that you could pull the trigger and either he or Constable Culliver would be dead.

32He also considered that your son would be very likely to be hit and injured.  You were ranting and raving and saying, "Fuck off".

33Senior Constable Worsthorne made the decision to disengage and reverse the police vehicle a short distance away.  That vehicle became bogged.  Additional police members provided firearm coverage to enable Senior Constable Worsthorne and Constable Culliver to run from their vehicle to the safety of other police vehicles which then retreated away from the scene. 

34You drove from the area to bushland in Loy Yang and parked your vehicle on a bush track amongst trees.  You and your son remained with the vehicle. 

35At approximately 7 am the alarm on your daughter's phone went off and it was realised that the phone was still in the house.  There is a charge of false imprisonment which I am going to make totally concurrent anyway so I will not worry about that.

36At approximately 8.15 am a friend of yours, a Mr Greenhough, contacted you on his mobile phone.  He spoke to you, you said, "I've fucked up. I've fucked up bad.  I've threatened police with a gun."  You told him that you had your son with you.  He convinced you to meet him at a location on Callignee Road.  He spotted your son on the side of the road and observed you approach out of the bush carrying a loaded shotgun and a shotgun ammunition belt with 19 shotgun cartridges and a pocket knife.  You made the shotgun safe and gave it and the other items to Mr Greenhough who placed them on the back seat of the car.  You then said, "I've threatened police" and talked about the shotgun again.  Mr Greenhough contacted Triple 0. 

37At approximately 9.30 am the police negotiator contacted you by phone and negotiated your arrest by the special operations group.  You were interviewed by police when fit enough and your interview - it is fair to say, was confessional and expressed in fairly intense terms by that stage at least, your remorse for what had taken place.  It is quite clear that you were out of control whilst this was taking place but it is also quite clear that you were aware of what was going on and aware of your conduct. 

38In so far as your family is concerned you have strong family support and they are here at court to support you.  As I have indicated to your counsel, the forgiveness of family I take into account in terms of your future rehabilitation and also in so far as the effect of this offending on them as - sorry, the effect that this offending has had on them not being as severe as it might otherwise have been.  That is not the case in so far as the police officers are concerned.

39Tendered were two victim impact statements which clearly outline the dreadful situation in which you put two police officers who were simply doing their job.  Senior Constable Worsthorne had to make the decision in what you were doing to him whether he took another person's life or not.  The decision he had to make included knowing that if he shot you, the shotgun might have gone off and he and his partner would have been dead.  Your son might have been dead too.  It is a dreadful situation to put anybody in, let alone a police officer who is simply doing their job and the consequences to each of those police officers has been traumatic and ongoing and in my view as indicated to your counsel, this is one of the most serious threat to kill situations that I have struck.

40You had the capacity, an immediate capacity to kill two police officers with the simple movement of your finger and they knew that and clearly were terrified and behaved with commendable courage, if I might say so. 

41In any event, the offending is very serious indeed and calls for general specific deterrence, denunciation and appropriate punishment.  It is a classic example of why people become so concerned about gun laws and what can go wrong in situations where guns are in the community with somebody who is intoxicated as you were.  The only appropriate sentence in this situation is a very significant custodial one. 

42In terms of determining the length of that I look to matters personal to you.  Your counsel tendered on your behalf a very helpful, again, if I may say so, outline of submissions.  He also tendered reports of Professor Carol, Dr Matthew Bath and Dr Amira.  I have obviously read those reports in detail and are well aware of the contents of them.  Since the offending you have been in custody for most of the time but you were able to spend some three months as I understand it, going through a drug addiction rehabilitation centre and you were able to complete that successfully albeit with some rather strange conclusions which nobody went to during the course of the plea.

43In any event, I take that as an indication of your desire to rehabilitate.  So far as the risk of you re-offending is concerned it would seem to be difficult to ascertain.  Clearly, if you are capable of doing so for a sustained period of time when on alcohol - I'll be coming to that in a moment - there has to be an element of concern.  As I have said, I have taken into account the family support.  You get visits regularly in gaol.  It was accepted by your counsel that the principles of Verdins were not applicable in this situation.  You have been doing rehabilitation in gaol and so far as alcoholism is concerned, and you have been working as I understand it, as a billet.

44Your history is one of having a very good work record, you went to school in Sale until Year 11.  You are married now for some 16 years or so and you have a son now 19 and a daughter aged 14.

45You had difficulties at school and were sexually abused at some stage - that, in my view is nothing to do with what happened here - and then left school.  As you have indicated you always worked. As a tyre repairer and you worked logging contractors, land management and as a machine operator for approximately 12 years up until the time of this offending. 

46Professor Carroll said that you are, "intensely remorseful" about the offence and I accept that and take it into account.  He went through your medical history and it would appear that over the years you have been diagnosed with a generalised anxiety disorder.  It would appear clear that at some stage at least though not now, you would have had at least symptoms of post-traumatic stress disorder from nearly losing your lives and your family lives in the Black Saturday fires.  You have had pancreatitis since a very early age and at one stage, some four, five or six years ago, nearly died from internal haemorrhaging following it.

47You have had treatment with various anti-depressants over the years.  The pancreatitis has been of serious significance indeed to you and you have had a number of hospital admissions.  There has been significant damage to your pancreas. 

48In 2014 you commenced treatment with Lyrica for pain relief.  You claim not to have been advised of the effects of mixing that drug with alcohol.  Professor Carroll said that your account to him, at least, is of having cannabis dependency in the few months before the incident and as well as you claiming to him partial amnesia for the subsequent events as well as the clear evidence of profoundly disinhibited behaviour disorientation and in his view, possibly transient delusional beliefs. He said they are consistent with the state of delirium due to intoxication with a combination of Lyrica, cannabis and alcohol.  It is well established that Lyrica exacerbates the disinhibitory effects of alcohol.  None of that, in any way, mitigates the situation.  It just simply puts it into perspective.

49In the end, he said you had generalised anxiety disorder, cannabis use disorder and at the time of the offending a "substance intoxication delirium."  He said that the alcohol and cannabis addictions appear to have resulted from the anxiety disorder. 

50I accept that it has to be viewed in spite of some matters within the brief that are causing me concern that this behaviour, certainly to this level, was out of character for you.  I have to be - or endeavour, at least, to take into account principles of totality and not impose a sentence which could be seen as crushing. 

51At the end of the day, this sort of conduct, drunken with firearms where multiple lives were put at risk and multiple lives were threatened can only be met with condign punishment.

52There is little assistance from comparable cases in the situation like this and, as I have indicated, I have taken into account in the ways that I have described the forgiveness of your family in so far as the offences against them are concerned. 

53Accordingly, you are sentenced as follows:

54On Charge 1, 18 months.  Charge 2, six months.  Charge 3, 12 months.  Charge 3, 12 months.  Charge 4, 3 months concurrent.  Charge 5, seven days concurrent.  Charge 6, 12 months.  Charge 7, 3 months concurrent.  Charge 8, threat to kill a police officer, 3 years.  Charge 9, threat to kill a police officer, 3 years.  Charge 10, one month.  On Charge 11, you are convicted and discharged.  On the summary charges, assault with a weapon, 7 days.  Unlawful assault, 7 days. Loaded firearm, 7 days.  Failure to store a firearm, 7 days. Failure to store ammunition, convict and discharged.  Unregistered vehicle, convict and discharged.  Unregistered vehicle, convict and discharged.  Those four sentences are to be served concurrently with each other and with the sentence imposed on the indictment.

55On the Charges on the indictment, six months of the charge, six months of the sentence imposed upon Charge 1, two months of the sentence imposed upon Charge 2, four months of the sentence imposed upon Charge 3, six months of the sentence imposed upon Charge 6 and 12 months of the sentence imposed upon Charge 9 are to be served cumulatively upon each other and upon the sentence imposed upon Charge 8.  That gives a total effective sentence of five and-a-half years.  I direct that you serve a minimum term of three years and three months before becoming eligible for parole.  I direct that 216 days be reckoned as having been served under this sentence so that you and your family fully appreciate the significance of your genuine remorse and having pleaded guilty - I say but for your plea of guilty, you would have been sentence to be imprisoned for a period of eight and-a-half years with a minimum term of six. 

56Remove the prisoner, thank you.

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