Director of Public Prosecutions v Buchanan

[2019] VCC 771

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01158

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN BUCHANAN

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2019
DATE OF SENTENCE:	28 May 2019
CASE MAY BE CITED AS:	DPP v Buchanan
MEDIUM NEUTRAL CITATION:	[2019] VCC 771

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing
Catchwords: Plea – Recklessly Cause Serious Injury – Prohibited Person Possess a Firearm – Possession of a Drug of Dependence – Prior Convictions – No Prior Convictions for Violence – Serious Offending – Use of a Handgun - Delay 
Legislation Cited: Sentencing Act 1991
Cases Cited: DPP v Telford [2010] VSCA 118; DPP v Dalgliesh (a pseudonym) [2017] VSCA 360; R v Kilic (2016) 259 CLR 256; Hamid v the Queen [2019] VSCA 5; DPP v Milson [2019] VSCA 55
Sentence: Total effective sentence 6 years’ imprisonment, with a non-parole period of 3 years’ and 7 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. McConaghy	Office of Public Prosecutions
For the Accused	Mr N. Leslie (Plea) Mr R. Lawson (Sentence)	Haines & Polites

HIS HONOUR: 

1John Buchanan, you have pleaded guilty to one count of causing serious injury recklessly, maximum penalty 15 years' imprisonment; one count of prohibited person possessing a firearm, maximum penalty 10 years' imprisonment; and one count of possessing a drug of dependence, maximum penalty one years' imprisonment.    

Circumstances of offending

2The circumstances of the offences were outlined in the prosecution opening on the plea and which I incorporate by reference.  In essence the offending arose out of an interpersonal dispute between the complainant, Mr Murray and yourself and your co-accused, Mr Rizzi, who was found not guilty when he went to trial.  This is asserted to have arisen over alleged events involving both you Rizzi, involving a female while the complainant was in prison.

3On the night of the offending, the complainant was in his vehicle on the relevant night.  He was parked on a road in Melton, seeking to purchase marijuana. While he was on the phone, Mr Rizzi and a female pulled up in a vehicle beside him.  There was then a verbal altercation between the two of them and Mr Rizzi drove off with the complainant following him.  There was then effectively a car chase which ended when Mr Rizzi drove near your address in Rees Road, Melton South.  The complainant parked his vehicle a couple of car lengths in front of Mr Rizzi’s vehicle and emerged.  He took his shirt off and called out to Rizzi to approach him and 'deal with it like a real man.'  You emerged from the residence and stood next to Rizzi, who at that stage was standing next to his vehicle.  You then said to the complainant, 'are you that fucking stupid to walk up to the car?'  

4The complainant was walking towards the two of you and was about 20 feet away.  At that point Mr Rizzi decided to leave, told you not to worry about it and went to walk away.  The complainant then said to the two of you that you were 'nothing but a pack of weak dogs'.  You then said to Rizzi, 'Fuck it, give it here.'  Mr Rizzi then retrieved a small handgun from his vehicle and handed it to you.  You then turned and pointed it at the complainant and fired, hitting him in the lower stomach area.  This caused him to drop to one knee, however he managed to get back on his feet and moved to the driver’s side of his vehicle. Mr Rizzi got into his vehicle and left.  At some stage a further shot was fired into the driver’s side door of the vehicle driven by the complainant. There was also a collision between Mr Rizzi’s vehicle and the complainant’s driver’s door, as
Mr Rizzi drove away.

5The prosecution is unable to identify the circumstances of the firing of the second shot.  The complainant then drove his vehicle to the 7-Eleven at Melton. A vehicle known to be driven by you left the scene soon after.  The complainant arrived at the Melton 7-Eleven and called 000.  Police and ambulance attended and he was conveyed to the Royal Melbourne Hospital, whilst en route he identified the location of the shooting.  In hospital surgery was performed, but the bullet was unable to be retrieved.  Paint debris was found at the scene along with glass fragments and plastic which matched damage to the vehicle of the complainant. Mobile phone records showed that both you and Rizzi were in the area.  

6On 20 October 2017, a search warrant was executed at your property and ammunition was seized.

7On 25 October you were observed by the police and arrested at the Bacchus Marsh retirement village.  You were found to be in possession of a zip-lock bag containing a white crystal, which was found to be 0.2 of a gram of
methylamphetamine.  In the vehicle, orange powder being 1.3 grams of methylamphetamine, methorphan and ketamine were found.  The drug finds were the subject of Charge 3.  You gave a 'no comment' record of interview. There was a contested committal hearing and you were presented on a charge of intentionally causing serious injury

8The matter was listed for trial and on the date of the trial, the prosecution accepted your offer to plead guilty to recklessly causing serious injury.

Seriousness of the offence

9Recklessly causing serious injury is a serious offence on the criminal calendar. It carries a maximum prison term of 15 years and requires that the injury suffered be life-threatening and/or profound.  The mental element required is that you foresaw the probability of serious injury and went ahead regardless of that probability.

10It requires a conscious disregard of a risk of serious injury which the offender knows to exist. The assessment of a particular instance involves considering both the degree and probability that serious injury will result and the degree of seriousness of the probable injury.

11Ordinarily the use of a weapon, particularly a firearm, will mean that the offence is more serious, since it heightens the probability of serious injury and the degree of seriousness of the probable injury.  Here the use of the firearm leads to the conclusion that you foresaw the probability of very serious injury to the complainant.  Use of a firearm directed at the torso of an individual creates the risk of serious injuries to the internal organs and blood supply which could be life-threatening.

12This risk is confirmed in the opinion of Dr Williams, whose report was tendered on the trial of Rizzi, who indicates that, 'Gunshot wounds of the abdomen have the potential to disrupt major and vital structures and place a person in a significant, time-critical and life-threatening situation.  Death can occur at the time of the wound, or as a consequence of the bleeding, internal injuries, infection or the development of subsequent medical conditions and illnesses.'

13In this case the wound resulted in a moderate amount of blood loss, requiring surgery and a period of four days in hospital.  There was no damage to major organs.  Dr Williams opines that without the surgery, the complainant’s life may have been endangered.

14The injuries to the complainant meet the criteria of a serious injury as being
life-threatening or protracted.

15Although there was no actual victim impact statement, in a statement tendered, the complainant indicates that as a result of the gunshot wound, he has pain when he gets up, when he walks and when he urinates. He has a clicking in the location of the bullet in his body, it causes problems in urination.  He said, 'Any movement or bodily function involving that part of my body causes me pain.  For example, when I exercised doing squats, it hurts.'  He believes he will experience pain for the rest of his life.  He did not have the pain beforehand.  When he entered the courtroom in the trial of Rizzi, he had a noticeable cramped gait.

16Your counsel accepted that your conduct also had had a psychological impact on the complainant.

17I am required to take into account the impact on the complainant of your offending in sentencing you.

18Overall, this is a serious example of the offence of recklessly causing serious injury because of the use of a weapon, directed to the torso of the complainant and the long-term consequences.  The prosecution noted, however, that the complainant has been able to establish a business as a bricklayer.  Thus whilst it is clear from the statement that he has continuing pain and disability, it appears to have not have substantially impacted his earning capacity.

Other considerations

19In assessing the seriousness of the offending here and your moral culpability,
I am satisfied that there was some premeditation, or at least calculation.  In the evidence of the complainant at the trial of Rizzi, he indicated that there had been some back and forth between you and the complainant after the complainant emerged from his vehicle and removed his shirt, effectively inviting
Rizzi to a fist fight.  You then made the statement as to him approaching the vehicle.  Rizzi then decided to leave.  At that point, you then sought from Rizzi the firearm.  As the prosecutor submitted, you then took control of the situation and effectively took the law into your own hands.  At that point the complainant did not present any significant threat to you, other than a possible fistfight, where you would have the assistance of Mr Rizzi.  He was not carrying any weapon.

20In those circumstances, your firing the handgun at his torso was effectively a pre-emptive strike, a brutal, callous, and cowardly act that was completely disproportionate to the threat that you faced.

21It is very fortunate that the complainant’s injuries, although meeting the criteria of life-threatening and/or profound, have substantially resolved, although he has what appears to be lifelong sequele.

Prior convictions

22You have admitted a significant criminal record, although it does not contain offences of violence.  You were born in February 1989.  When you were 22 in December 2011, you are placed on a 12 months' Community Based Order for exceeding PCA, unlicensed driving, using an unregistered motor vehicle and failing to answer bail.

23On 18 July 2014, you were before the Sunshine Magistrates' Court on a number of charges, including five charges of driving whilst disqualified, five charges of using an unregistered vehicle on a highway, failing to answer bail and other registration-related offences. You were sentenced to two months' imprisonment on the driving whilst disqualified and an 18 months' Community Corrections Order to follow the period of imprisonment on using the unregistered motor vehicle charges.  You were also sentenced on charges of driving in a manner dangerous, driving whilst disqualified and exceeding a speed limit by 45 kilometres or more, to an 18 months' Community Corrections Order.

24On the same date, on charges of carrying a controlled weapon without excuse, being a non-prohibited person carrying an unregistered long arm, possessing an unregistered long arm, and possessing cartridge ammunition, you were sentenced to an aggregate term of two months' imprisonment.  On the charge of possessing a controlled weapon without excuse and possessing methylamphetamine, you were sentenced to an 18 months' Community Corrections Order to follow the term of imprisonment.

25Your next appearance was before the Sunshine Magistrates' Court on
28 September 2015, where you contravened that earlier Community Corrections Order by further offending.  The further offending including failing an oral fluid test, two charges of driving whilst disqualified, one of driving in a manner dangerous, two charges of possessing cannabis, one of possessing heroin, one charge of negligently dealing with the proceeds of crime, one charge of possessing cartridge ammunition without a license or permit, one charge of failing to answer bail, one charge of dishonestly receiving stolen goods and other charges of dealing with property suspected of being the proceeds of crime and dishonestly assisting in retaining is stolen goods.  On those charges you received a six month term of imprisonment, concurrent and 119 days was declared as having been served.

26On the same date on offences of theft of a trailer, obtaining property by deception, handling stolen goods and dealing with property, the proceeds of crime and cultivating a narcotic plant, you were sentenced to a term of six months' imprisonment as an aggregate sentence and the sentence was wholly suspended for a period of two years. The explanation noted in the records, was that the offending had predated the offending that was dealt with on 18 July 2014.  

27You were also dealt with for using an unregistered vehicle on a highway, two charges of using cannabis and other registration offences and you were fined $1,000 in aggregate.  You were then resentenced for the offences that for which you had been placed on the Community Corrections Order on 18 July 2014.  The order was confirmed and was to commence for a period of 12 months from 27 November 2015, when you were released from custody after serving the six months sentence.

28Thus in 2014 and 2015, you were sentenced to terms of imprisonment of two and six months respectively.

29Your prior convictions show that you have been sentenced to terms of imprisonment for driving and drug-related offences, as well as firearms offences.  You have also been sentenced to Community Corrections Orders on two occasions that you have breached.

30The prosecution also tendered your antecedents, which indicated that on
15 October 2018, you are dealt with in the Melbourne Magistrates' Court for contravening the Community Corrections Order imposed on 28 September 2015 and the breach was found proven.  

31On 15 October on charges of theft of a motor vehicle, undertaking retention of stolen goods, dealing with the proceeds of crime, possessing a prohibited weapon without excuse, failing to answer bail, burglary, attempted theft of a motor vehicle, going equipped to steal, trafficking methylamphetamine, dealing with property, the proceeds of crime and being a prohibited person possessing a firearm, you were sentenced an aggregate sentence of nine months' imprisonment.

32At the time of this sentence, you were on remand for these offences.

33Your prior convictions and your antecedents are relevant to your moral culpability for this offending, as well as your prospects of rehabilitation.  You have failed to respond to non-custodial lenient dispositions and you reoffended after periods of imprisonment.  At the time of this offending, you had only recently completed the period of the two years' suspended sentence imposed in September 2015.

34You have a number of prior convictions and antecedents for weapons-related offences and numerous dishonesty and status-type offences in relation to motor vehicles and driving, as well as drug-related offences.

35Your criminal record indicates that although this is your first crime of interpersonal violence that brings you before the courts, your failure to respond in the past indicates that considerations of specific deterrence and protection of the community have some salience in sentencing you.

Personal circumstances

36You are now aged 30.  Your parents were in Court to support you on the plea. They divorced when you were aged eight.  You struggled at school.  Your parents were in the transport industry.  You have been in the workforce in the road construction industry as a specialist operator, known as a profiler.  A person of considerable importance in your employment in that industry, recently passed away and this has had a major impact on you and may affect your ability to re-gain employment in that sector upon your release.  He provided a letter in support, indicating that he found you remorseful and that his staff will support you upon release.   

37You are single.  You have a 13-year-old child who you are in contact with and you have good relations with his mother.

38Your own mother has significant health issues and you have been a major support for her.

39Your imprisonment will be more burdensome, as you have been unable to provide her with support when she needs it, particularly as her sister is unable to assist.

40Your father has indicated that he will provide you with some support and work in southern New South Wales upon your release.

Current sentencing practices

41Your counsel referred to the sentencing snapshot that indicates that the average length of imprisonment for the offence of causing serious injury recklessly over the period 2012/2013 to 2016/2017, was three years and one month.   

42Little assistance can be obtained from those statistics and the case of Telford[1], which was also referred to, given its age and the special features of rehabilitation in that case namely double jeopardy and fact that it preceded the cases of Dalgliesh[2] and Kilic[3].  The prosecution relied on the case of Telford, however, for its emphasis on general deterrence when a concealed weapon is used and further, where there is a degree of premeditation that the Courts will set their face against any notion that it could be thought appropriate for persons to take the law into their own hands.

[1]DPP v Telford [2010] VSCA 118

[2]DPP v Dalgliesh [2017] VSCA 360

[3]R v Kilic (2016) 259 CLR 256

43The two leading cases of Dalgleish and Kilic remind the courts that current sentencing practices are only one matter to be taken into account. Kilic emphasises that regard must be had to the maximum penalty.  Following the plea, submissions were provided on the recent cases of Hamid[4] and DPP v Milson[5].

[4]Hamid v the Queen [2019] VSCA 5

[5]DPP v Milson [2019] VSCA 55

44The learned Crown prosecutor submitted that the two cases are broadly comparable, however both relate to more serious offending.  The prosecution noted that in the case of Hamid there was a very high degree of premeditation, with specific selection of the weapon, it was used repeatedly and the impact was significantly more profound.  Further the offender had a relevant criminal history, including a previous stabbing.

45In the case of Milson, which was a charge of intentionally causing serious injury, there was also premeditation and planning. The firearm was selected for its purpose and used in a calculated manner to enforce compliance.  There was also a greater long-term impact.  In Milson there was also remorse, custody was unusually more burdensome and the prospects of rehabilitation was seen as a very significant factor.  Those factors were submitted by the learned Crown Prosecutor as not being so salient in the present case.

46The prosecution noted that from Hamid, the offence is seen as a serious offence and the severity of injuries is a significant, but not the sole factor in assessing seriousness.  Further, where the facts are similar to that of intentionally causing serious injury, there is no meaningful differentiation in sentence from that offence and recklessly causing serious injury and general deterrence is always important as a sentencing consideration in offences of violence.

47Your counsel submitted that the distinguishing features identified by the learned Crown prosecutor in the two cases means these two cases are of little assistance.  I accept the submission that there are significant distinguishing features in relation to both cases.  In particular there was much greater premeditation in those two cases and also in the case of Hamid, prior offending.

48The emphasis, however, on general deterrence in relation to offences of violence, remains relevant and individual sentences in other cases do not constitute precedents.

49It was common ground that sentences in the higher range for this offence featured offenders where the accused went to trial, where the injuries were
life-threatening, catastrophic or permanent and where the offender had relevant prior convictions for violence, including for the same offence.

50Those particular features are not present in this case.  However, as the prosecutor submitted, this was a serious example of the offence and Kilic emphasises that the maximum penalty must be considered as a yardstick when placing offences within the spectrum of offences for any particular offence.

51Here, you have pleaded guilty.  The plea was late, however it did facilitate the course of justice and obviated a trial and the relevant cross examination of the complainant.  You are entitled to the benefit of your plea of guilty.  The plea itself is some evidence of remorse.  There was also a reference to remorse in the letter from your former employer, tendered on the plea and I give it some minor weight.  

52In sentencing you I take into account that you have been in custody since your arrest in October 2017.  You were sentenced to a period of nine months' imprisonment for offending which predated this offence.  This does not count as pre-sentence detention.  You have been on remand effectively for the whole period since your arrest.  This makes imprisonment more burdensome, as you have not had the same access to programs that you would have, were you a sentenced prisoner.  Further, had these matters been dealt with in October 2018, then there would have been some concurrency ordered.  I have made some allowance for this in both the head sentence and the non-parole period accordingly.

53I take into account that imprisonment will be more burdensome, as you will be unable to assist your mother who is facing significant medical issues.

54In relation to your prospects of rehabilitation, given that you have no prior convictions for crimes of violence, in this respect, they must be regarded as good.  However given your failure to respond to sentences of imprisonment for a range of other offences, including firearms offences, your prospects, as submitted by the learned Crown prosecutor, at their highest are guarded.  You have, however, family support and also support from your former employer.

55In relation to the drug possession offence, little was made to it on the plea. You have prior convictions for drug-related offending, however the amount of drugs found was relatively low.

Purposes of sentencing

56The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. 

57In this case considerations of general deterrence, denunciation and specific deterrence must play considerable weight.  The sentence of the Court must emphasise that the use of weapons in interpersonal violence, particularly firearms, is to be absolutely condemned.  The sentence of the Court, must send a signal to all those minded to resort to illegal weapons to inflict injury on others, that they will suffer heavy penalties.  Those who injure others must expect the courts to impose sentences that will deter others from interpersonal violence.

58The Court must also denounce your conduct.  You effectively took the law into your own hands and inflicted a serious wound on the complainant when he was defenceless.  Resort to violence to resolve interpersonal issues is to be utterly condemned.

59Next, specific deterrence has some salience, as you have been sentenced to terms of imprisonment, albeit not for offences of violence in the past, but you continue to re-offend.  Further you have been dealt with in the past for weapons and prohibited weapons offences.  Despite your prior appearances, you were still prepared to resort to this firearm, having obtained it from your friend, Rizzi, shortly prior.  I accept, however, that you only had it for a very short time.

60Could you please stand. 

61I have taken into account all the matters put by your counsel and I sentence you as follows: 

62On Count 1, which is recklessly causing serious injury, you are sentenced to five years and nine months' imprisonment.

63On Court 2, being a prohibited person in possession of a firearm, you are sentenced to 12 months' imprisonment. 

64On Count 3, which is the charge of possession of drugs, you are sentenced to three months' imprisonment. 

65I direct that three months of the sentence of Count 2 be served cumulatively on the sentence on Count 1, making a total effective sentence of six years' imprisonment. 

66I order that you serve a non-parole period, or a period of three years and seven months before being eligible for parole.

67HIS HONOUR:  I declare you have served 306 days pre-sentence detention. 

68I declare, had you not pleaded guilty, I would have imposed a total effective sentence of seven years and four months' imprisonment, with a non-parole period of four years and ten months.

69The prosecution have sought a disposal order for the drugs. And I will make that order.

70HIS HONOUR: I order that the summary charge of driving at a speed dangerous be transferred to the Melbourne Magistrates' Court and you will be remanded to that court on that charge, 10 am on 25 June. 

71MR McCONAGHY:  Your Honour, on Indictment C1711561.4, a charge of conduct endangering persons. 

72MR LAWSON:  I pursue the application for that charge as well, Your Honour.

73HIS HONOUR:  I direct that that, the charge of conduct endangering persons on Indictment C1711561.4 also be transferred to the Melbourne Magistrates' Court, to be heard on 25 June 2019 at 10 am and the accused is remanded to the Melbourne Magistrates' Court on that charge and the other summary charge on that date.

74MR McCONAGHY:  If the court pleases.

75HIS HONOUR:  Is that everything? 

76MR McCONAGHY:  Yes, Your Honour.

77HIS HONOUR:  I want to thank you, Mr McConaghy for your assistance in the trial.  And also Mr Leslie for the plea and Mr Lawson, the sentence and adjourn sine die.   

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