Director of Public Prosecutions v Boxhall
[2020] VCC 1973
•9 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00900
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL EDWARD BOXHALL |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2020 | |
DATE OF SENTENCE: | 9 December 2020 | |
CASE MAY BE CITED AS: | DPP v Boxhall | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1973 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of intentionally causing injury and one charge of prohibited person using a firearm – 26 year old offender with Autism Spectrum Disorder – provoked by brother into shooting him in the leg with a homemade firearm
Sentence: On Charge 1: 44 days’ imprisonment and a Community Correction Order with special conditions of supervision, drug and alcohol treatment and 150 hours of unpaid community work. On Charge 2: Community Correction Order with 50 hours of unpaid community work.
6AAA: A Total Effective Sentence of 2 years’ imprisonment with a non-parole period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J McCarthy | Solicitor for Public Prosecutions |
| For the Accused | Mr C Pearson | Vassis & Co Solicitors |
HER HONOUR:
1 Paul Edward Boxhall, you have pleaded guilty to one charge of intentionally causing injury, which carries a maximum penalty of 10 years’ imprisonment. You have also pleaded guilty to being a prohibited person who used a firearm, which carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are detailed in the summary of prosecution opening for plea (Exhibit “A”). On 16 March 2020, you and your older brother, Shane, who lived in the unit next door to you in Melton, had an argument. Apparently, you have a history of arguments and you threatened to kick him out of his unit next door to you, which you had apparently played a role in procuring for him. He threatened to burn down the unit, in response to which you said you would shoot him. He then goaded you, telling you to go ahead. You then went inside your unit and returned with a firearm, and your victim gave you a look as if to say “Go on then”, and you shot him to the front of his left thigh. You apparently then left the premises with the firearm, and your partner, Ms Brianna Ritchie, who resided with you, was left to assist your brother.
3 An ambulance arrived and he was taken to Royal Melbourne Hospital. He was apparently fully conscious, breathing normally, speaking normally, and did not appear to be in much pain, although ambulance officers gave him intravenous morphine. He had some altered sensation in the distribution of two nerves that supply sensation to the skin of the inner thigh and lower leg, but no injuries to bones or major blood vessels. Your brother discharged himself the following day, contrary to medical advice, but on a later date returned to the hospital, and on 20 March 2020 underwent surgery to remove the bullet from his leg.
4 There is no evidence of ongoing injuries to your brother, although a forensic physician, Dr Caroline Bolt, opined that he was likely to have a permanent scar from his wound and operation. She was unable to comment on any ongoing symptoms or complications because he did not attend follow-up appointments.[1]
[1]Statement of Dr Caroline Bolt, depositions, page 75.4
5 You later returned to the scene of offending and, although you initially denied to police that you had shot your victim, when interviewed later that evening you admitted that you had shot him because he “was just getting smart and doing my head in”.[2] You told police “He’s always annoying me”,[3] and that when you returned outside with the firearm “He said I wouldn’t do it, so I did it. It was stupid.”[4] You told police that after that “I freaked out, I left”.[5]
[2]Answer to Question 12, record of interview
[3]Answer to Question 48, record of interview
[4]Answer to Question 47, record of interview
[5]Answer to Question 31, record of interview
6 You stated that it was a homemade firearm with some sort of cloth wrapped around it, and you had not had it for long, and it was not made by you, and there was only the one bullet in the gun. When asked why you had the firearm, you stated “I dunno, ’cause I’m an idiot.”[6]
[6]Answer to Question 42, record of interview
7 Police advised you that your brother was in hospital awaiting surgery on his leg, and asked how you felt about that, and you responded “Terrible, a little depressed”. They asked, if you had your time over, whether you would have done it again, and you responded, “Nuh, no way.”[7]
[7]Answers to Questions 53 and 54, record of interview
8 You were charged with the offences on the date they had been committed, and indicated your intention to plead guilty to them at an early stage, namely a committal mention on 16 July 2020.
9 You are presently aged 26 years, having been born on 23 December 1993. You have no prior convictions in relation to firearms but, back in 2012, received a “without conviction” bond in relation to assaulting the same brother who is the victim of the offending for which I must sentence you. In 2016 you were convicted and fined for an assault involving pushing your former partner up against a wall in the context of an ongoing dispute about your access to your child. In 2016 you were sentenced to seven days’ imprisonment for persistent contravention of a Family Violence Intervention Order involving your former partner, and again sentenced to 14 days’ imprisonment in July 2016 for a further contravention. Subsequent to that, in February 2017 at Frankston Magistrates’ Court you were convicted of another contravention of a Family Violence Intervention Order involving your former partner, and placed on a Community Correction Order for 12 months, which you breached the following year. You had also breached another Community Correction Order later in 2017 upon which you had been placed on appeal to the County Court in August 2016 relating to charges of escaping from lawful custody.
10 After being arrested by police for the offending for which I must sentence you, you were remanded in custody for 44 days prior to being granted bail. In a plea on your behalf by Mr Pearson, the court was urged to give you a combination sentence by way of the time served and a Community Correction Order. Mr McCarthy, on behalf of the Director of Public Prosecutions, did not oppose a combination sentence, but submitted that the 44 days which you had served was an insufficient period of imprisonment to reflect the overall seriousness of your offending.
11 As I stated from the bench during the plea hearing, this court must denounce your conduct and place emphasis upon general deterrence in sentencing you. The last thing we want in this country is for people to be possessing firearms when they should not, and using them in an irresponsible fashion as you did. Having said that, I also referred to the fact that the circumstances surrounding the commission of the offence, are somewhat unusual, in that your brother, the victim, seemed to be daring you to shoot him. Although that can never be an excuse for your behaviour, I do note that he declined to tell police who had shot him. Also, he declined to make a victim impact statement.
12 Not only do you and your brother have a long history of a tempestuous relationship, but you admitted to Ms Carla Lechner, who provided a psychological report for the plea hearing (Exhibit “1”), that you had consumed both ice and GHB on the day of the offence, and had not slept for the past three to four days. It is plain from your counsel’s submissions that you have had a long history of substance abuse, primarily cannabis and methamphetamine.
13 It is also clear from the history given to Ms Lechner, and also to Dr Aaron Cunningham in an earlier report dated 17 December 2012 (Exhibit “2”), that you have had a severely disadvantaged background, in that you have never known your natural father, and your mother, who had mental health issues of her own, struggled to appropriately care for you and your two older biological brothers and two younger half brothers. You had a very disrupted school life. You attended a number of different primary schools and secondary schools and were taken into protective care at the age of twelve. Thereafter, you lived in several different foster homes and, then, in a residential unit until the age of eighteen. You then returned to live with your mother, of whom you were fond. She died of cancer approximately four years ago.
14 On top of this background of disadvantage, you had been diagnosed with Attention Deficit Hyperactivity Disorder as child. However, apparently it was not until you saw Dr Cunningham in 2012 that you were diagnosed as suffering from autism. He described it as high-functioning autism, and noted impairment to facial expression and postures and gestures to regulate social interaction and a lack of social and emotional reciprocity. He also noted repetitive and stereotyped patterns of behaviour and inflexibility.
15 Dr Cunningham’s view differs somewhat from that of Ms Lechner, who found you to be in the low average range of verbal intelligence and opined that your vocabulary and abstract verbal reasoning were well below average. However, she found a similar presentation to Dr Cunningham in terms of poor eye contact and flat and restricted affect and facial expressions, and noted that you impressed as having a fairly rigid thinking style and were not good at reading an emotional state of affairs and interpreting body language or nuanced language such as irony, sarcasm and humour. She recorded that you feel anxious meeting new people, and have felt angry in the past in the face of bullying, and admit that you have “a short fuse.” She agreed that you had autism spectrum disorder and also symptoms of stimulant-use disorder in early remission.
16 In her report, Ms Lechner noted that people with autism spectrum disorder tend to have a rigid thinking style and literal interpretation of events around them. In her summary she stated that you had told her that after being chronically disrespected and denigrated by your brother you “snapped” and shot him when he dared you to do so. Ms Lechner stated:
“He appears to have taken the dare literally, lacking the skills to respond in a more appropriate manner, with his judgement further undermined by his level of substance intoxication.”
17 There is a dispute between the prosecution, which argues that your level of drug-induced intoxication was such that the principles in The Queen v Verdins[8] should not be enlivened, and that of your counsel, who relies upon Ms Lechner’s opinion as reducing your moral culpability. On balance, I find the analysis of Ms Lechner to be not sufficiently detailed to impress me that the relevant nexus between your autism spectrum disorder and the offending exists, primarily because of your florid description of being substance affected. However, your autism spectrum disorder is nevertheless a very relevant personal circumstance in the sentencing process.
[8](2007) 16 VR 269
18 Whilst victims should never be blamed for what has occurred to them, it is plain that your brother, Shane, was baiting you on this occasion and, also, that he had insulted your partner in circumstances where it would be known to him that both you and she suffer significant psychological issues.
19 I am particularly impressed by the fact that you have maintained an excellent work history despite your substance abuse issues and autism spectrum disorder. Indeed, your autism has caused you to fall through the cracks educationally so that you are virtually illiterate and innumerate.
20 After leaving school at some stage during Year 10 you managed to obtain work as a carpet-layer with Mr Louis Knight. In a reference dated 25 November 2020 (Exhibit “3”), Mr Knight stated that he has known you for 10 years, having first met you at a workplace where you were simply helping another carpet-layer. He observed that you were a good, hard worker, and he offered to employ you so that he could show you how to lay carpets in the right way. He stated that, from that day, you have proven yourself repeatedly to be a reliable and trustworthy worker. He stated that your performance is of a high standard and you work unsupervised, and this had caused him to offer you a 50/50 partnership with himself. Your work ethic and history is very much in your favour.
21 Another factor which I consider to be of very considerable importance is that I heard sworn evidence on the plea from your partner, Ms Brianna Ritchie. She is aged 25 years, and has been in a relationship with you for some three years. Courageously, she described to the court that she suffers from Obsessive Compulsive Disorder, anxiety, depression, psychosis, and features of Borderline Personality Disorder.
22 She admitted to having been a user of illicit drugs, although she is not presently so using, and has no criminal history. She stated that for some five years she had been prescribed the anti-psychotic medication, Abilify, 10mg each morning, as well as Valium, as required, for anxiety. She described debilitating uncontrollable rituals such as needing to have her phone in a particular position and repeatedly checking four of the apps on it, and repeatedly checking that the house is locked before leaving, which can involve up to 15 minutes of repeated checking at a time.
23 She told the court that her family did not understand and were not supportive of her psychological problems and, although you do not fully understand them, you are very supportive of her and listen to her and sit with her when she is upset. She last had a psychiatric inpatient stay because of her Obsessive Compulsive Disorder and anxiety shortly before you committed the offences for which I must sentence you. She told the court that whilst you spent the 44 days on remand she found it “horrible” because she missed your caring and compassionate presence. There were times when her psychological state was such that she was unable to leave her residence where she had been living with you. She said that she was very close to being readmitted to a psychiatric ward, again, when you were released on bail.
24 Ms Ritchie has been unable to work for a long time, and came across as a very fragile young woman who is very dependent upon you. She described you as her “rock”. In addition to being anxious about losing your support, she expressed her fear that, were you to be imprisoned again, she would find it difficult to keep up the rental on the property which you share with her at Bacchus Marsh, and expressed concern that she would lose that security. She is on a relatively modest Centrelink allowance, whereas you have a much greater income from working 6 days per week as a carpet layer in your business with Mr Knight. She stated that you and she moved away from Melton where your victim still resides so that you and he no longer see each other. She described that particular part of Melton as an area where many disputes and other unsavoury behaviour occurred on a regular basis. You and she now have the lease on a rental property in a nicer area, but as the rental is only some $70 less per week than her Centrelink payment, she fears that she may end up having to seek accommodation in some sort of refuge as she has no family or friends who would be able to provide her with somewhere to live.
25 I have already referred to the need for the Court to denounce your conduct and place emphasis upon general deterrence, which means sending a message so those in the community who might be minded to possess firearms unlawfully and, indeed, to injure others by using them, will know that they meet with appropriate punishment. It is of added concern when a person who uses a firearm is under the influence of intoxicating drugs as you apparently were. Having said that, I note that, prior to this offending, you had apparently not committed any offences for a period of two to three years. It would appear that the contravention of community correction order for which you appeared on 14 August 2018 related to a 2017 order and the order was varied on that date.
26 Your offences of assault in the past, in 2012 and 2016, relate respectively to your same brother who is the victim of the offending for which I must sentence you, and your former partner. The latter was related to attempts by you to see your child who was born of the relationship with your former partner, and this caused you considerable distress. It would appear that you have contravened family violence orders on a number of occasions, and in 2016 served short sentences of imprisonment in relation to those. You now appear to have given up hope of securing any access to your child and have formed a stable relationship with Ms Ritchie over the last three years.
27 You have contravened community correction orders twice in the past. However, an assessment conducted by Mr Williams of Melbourne Community Corrections dated 3 December 2020 (Exhibit “F”) reports you are suitable for another community correction order. It notes that you acknowledge that you lost control in the incident with your brother where he, too, was experiencing rage and anger, and that you should not have done it. You told Mr Williams that you had acquired the firearm because you felt unsafe in the area in Melton where you were living at that stage, after armed individuals had come looking for a past tenant. The unsafe nature of the neighbourhood was confirmed in evidence from your partner, Ms Ritchie, on the plea.
28 You acknowledged to Mr Williams that you had been using methamphetamine heavily for two or three years prior to the offending, but your period of 44 days in custody had helped you to cease that. You stated that you are prepared to undergo treatment for substance abuse, and also acknowledge that you struggle with your anger, but had found it difficult in the past to attend a group program which was part of an engagement in a former community correction order. Mr Williams has indicated that consideration can be given to your autism by finding an offence-specific program on a community correction order. He also recommended supervision in order to allow for case management, and notes that community work programs have currently been suspended.
29 Your status as a prohibited person in possession of a firearm arises under paragraph (c)(iia) of the definition in the Firearms Act because you had been subject to a community correction order which had a supervision condition attached to it, rather than because you had on any prior occasion actually been in possession of or used firearms. It is obvious that this was a crude, homemade weapon and, indeed, Leading Senior Constable Breer of the Ballistics Unit at Victoria Police Forensic Services Centre made a statement that when he examined the pistol it was initially incapable of chambering a cartridge due to a metal burr protruding into the chamber. It was only by removing the burr and using a screwdriver as a cocking handle that he was able to discharge the pistol (Exhibit C). Obviously you managed to fire it, but it is not a situation where, had someone else come across it, they would necessarily have been able to fire it readily.
30 I am mindful that in imposing a sentence for being a prohibited person who used a firearm, Charge 1, it is important not to impose double punishment, given that you are to be sentenced for use of the same firearm on Charge 2, even though they are discrete offences. This is a case where the factual basis for Charge 1 and Charge 2 is inextricably intertwined by reason of both offences being committed at the same time with the same weapon, albeit that the fact that you were a prohibited person must be acknowledged in sentencing.
31 As far as Charge 2 is concerned, I agree with the prosecution that, on its face, firing a bullet and causing an injury to another person, even under circumstances of provocation, would generally require a sentence of imprisonment longer than 44 days. However, you at least utilised the 44 days to remain drug-free, and have apparently not continued to use methamphetamine since being bailed back into the community. I am mindful of your relatively young age, deprived background, good work history, and what seem to be relatively good prospects of rehabilitation.
32 This is a case where the somewhat unusual circumstances of the occurrence, in combination with the factors put on your behalf at the plea hearing cause me to conclude that I cannot be satisfied that the only appropriate sentence is one of a further term of imprisonment, even if it were to be combined with a community correction order. I consider that this is a case where a community correction order can include a punitive element in order to achieve the purpose of denunciation of your conduct and general deterrence. It is important to put the offending in context. It was not seriously premeditated, but rather a foolish reaction in the heat of an argument between brothers who have traditionally not got on. It seems that, since then, you have been drug-free, you are able to express some form of remorse, and you certainly acknowledged the offending when interviewed, and pleaded guilty at the earliest possible stage. I also consider that serving a term of imprisonment as an autistic person who cannot read social and emotional cues and has very concrete thinking processes, as a matter of common sense, is likely to be harder than for a person who does not suffer such a disorder. Being virtually illiterate and innumerate is also likely to cause some issues during your time in prison.
33 What has particularly swayed my view that no further term of imprisonment should be imposed was the rather poignant evidence of your partner, Ms Ritchie. She described a side of you that is caring, compassionate, and supportive. She is a very vulnerable person. You have apparently lived in harmony together for three years, albeit previously in less than ideal circumstances at Melton. However, you now have secure accommodation elsewhere away from your victim with whom you have had no further contact. Her special needs, your care of her and your sound work ethic which has enabled you to also give her financial support cause me to conclude that some mercy in sentencing should be afforded for the sake of Ms Ritchie, and that giving you an opportunity for a community correction order, in combination with the period of imprisonment which you have served on remand, is likely to advance your rehabilitation, which is in the best interests of the community. Accordingly, this seems to me to be the appropriate disposition, after weighing up all relevant factors.
34 Mr Boxhall, would you please stand?
35 On Charge 1, intentionally causing injury, you are convicted and sentenced to a period of 44 days’ imprisonment together with a community correction order for a period of two years.
I declare a period of 44 days pre-sentence detention to be time reckoned as already served.
The terms of this community correction order will contain both core conditions, which attach to every order, as well as some special conditions, which are specific to your order. The core conditions are as follows:
· you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
· you must comply with any obligation or requirement prescribed by the regulations;
· you must report to, and receive visits from the Secretary during the period of the order;
· you must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force;
· you must notify the Secretary of any change of address or employment within 2 clear working days after the change;
· you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
· you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
The special conditions which will apply to the order are as follows:
· you must be supervised by the Secretary for the duration of the order;
· you must participate in counselling for drug and alcohol dependency as directed by the Secretary;
· you must participate in programs designed to reduce your risk of re-offending as directed by the Secretary, including anger management programs;
· you must participate in any programs to assist with vocational or educational training, including any programs designed to provide you with social skills to better manage conflict and to assist your literacy and numeracy if available and as directed by the Secretary
· you must complete 150 hours of unpaid community work
Pursuant to section 48CA of the Sentencing Act, I order that any time spent by you in undertaking treatment or rehabilitation or other programs should be credited towards the hours of unpaid community work to be performed. I here note that community work has been suspended during the COVID-19 pandemic, but that is not to say that it will remain so indefinitely.
36On Charge 2, being a prohibited person who used a firearm, you are convicted and sentenced to a community correction order for a period of 2 years. This is a separate order to that imposed on Charge 1, however, both orders will commence from today.
The same core conditions that I read out before apply to this order. The only special condition on this order is that you must complete 50 hours of unpaid community work, which will be performed cumulatively upon the hours for the community correction order imposed as part of the sentence on Charge 1.
37 Pursuant to section 6AAA of the Sentencing Act, I state that but for your pleas of guilty, I would have imposed a total effective sentence of 2 years’ imprisonment, with a non-parole period of 12 months.
38 Mr Boxhall, I can only make the two community correction orders which I have just described if you consent to them. You need to understand that if you breach either of the orders by non-compliance or new offending then that, in itself, is an offence punishable by 3 months’ imprisonment. If you do breach the orders, you will be brought back before me and you face the risk that the orders may be set aside and you may instead be sentenced to a further term of imprisonment. Do you consent to being placed on both of those community correction orders?
39 OFFENDER: Yes, Your Honour.
40 HER HONOUR: Very well. My Associate will provide you with copies of those orders, which you must sign.
41 Pursuant to section 151 of the Firearms Act, upon my finding you guilty of Charge 2, being a prohibited person who used a firearm, I order that the homemade .22 calibre handgun be forfeited to the Minister.
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