Director of Public Prosecutions v Chircop
[2018] VCC 2081
•30 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS CHIRCOP |
---
| JUDGE: | HER HONOUR JUDGE CONDON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 October 2018 |
| DATE OF SENTENCE: | 30 November 2018 |
| CASE MAY BE CITED AS: | DPP v Chircop |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 2081 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence –causing serious injury recklessly - plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic), s10 and s10AA
Cases Cited: DPP v Hudgson [2016] VSCA 254
Sentence: Total effective sentence of 6 years’ imprisonment with a non-
parole period of 3 years and 10 months
Section 6AAA declaration: 8 years’ imprisonment with a non-
parole period of 6 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Cordy (Plea) Mr T McCulloch (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J Clark | D'Alessandro & Associates |
1HER HONOUR: Nicholas Chircop, you have pleaded guilty before me to one charge of prohibited person possess firearm; one charge of causing serious injury recklessly; one charge of possess drug of dependence; two summary charges of possess cartridge ammunition; one summary charge of possess controlled weapon, and one summary charge of possess a schedule 4 poison. Exhibit A on the plea of mitigation was the Summary of Prosecution Opening outlining in detail the facts and circumstances which led to these offences.
2I incorporate that Summary as part of these reasons, however, I will briefly outline the offences. You are currently 24 years of age and at the time of these offences you were 22. The victim in this matter is Detective Leading Senior Constable Peter Ferguson. He has been a sworn member of Victoria Police since 2000, and is currently attached to the Latrobe Criminal Investigation Unit. Between 8:30pm on 5 August 2016 and 12:00am on 6 August 2016, you were driving a Mitsubishi Magna belonging to your mother at Hazelwood North.
3At an unknown time you veered off the road into a paddock and collided with a tree. The vehicle was extensively damaged. Prior to you leaving the scene you removed several items from the car and hid them in a bush. Two witnesses then found the car and notified police. One of those witnesses then located the secreted items. These were: a cream coloured gun bag; a loaded sawn-off shotgun (this relates to Charge 1 on the Plea Indictment); a loaded shotgun; a loaded .22 rifle with scope and 20 round magazine; a quantity of .22 rounds and shotgun shells (this relates to Summary Charge 3, possess cartridge ammunition); and an olive coloured balaclava.
4Police arrived a short time later and the items were seized. On 12 October 2016 police received information that you were at an address in Morwell. Detective Senior Constable Laurence Swan and the victim, Detective Leading Senior Constable Ferguson, arrived at the premises to place you under arrest. You and Mr Ferguson had a brief conversation. As he took his handcuffs out and went to place them on you, you punched him with your right hand. This relates to Charge 2 on the Indictment, causing serious injury recklessly.
5The punch connected with Ferguson's nose and mouth causing him pain and immediate bleeding. After striking him you attempted to run away. You were tackled to the ground by First Constable Jarrod Smith. You were then arrested and a black bag worn by you was seized. The following items were located in that bag: five orange strips of Suboxone, this relates to Charge 3 on the Indictment, possess drug of dependence; a small metal hatchet (this relates to Summary Charge 17, possess controlled weapon); a small quantity of crushed steroid tablets (this relates to Summary Charge 19, possess schedule 4 poison); and two shotgun shells (this relates to Summary Charge 22, possess cartridge ammunition).
6The victim, Mr Ferguson, was conveyed to the Latrobe Regional Hospital for treatment. Later that night at 11.08pm you took part in a record of interview at the Morwell Police Station. In the course of that interview you denied any connection to the firearms located at Hazelwood North, but you made admissions to assaulting Mr Ferguson and possessing the items located upon you at the time of arrest. Mr Ferguson was assessed following the assault on 12 October 2016 by Dr Simon Knight. He then referred Mr Ferguson to a plastic surgery team.
7Ultimately he was unable to return to work until 25 October 2016 and did not return to full duties until 31 October 2016. A plastic surgeon, Dr Raminder Dhillon, has also treated Mr Ferguson since your assault upon him. In his opinion, due to the degree of muscle rupture caused, the functioning of his lip will be permanently impaired. He further stated that the injury you inflicted involved long-term scarring which can take up to two years to settle.
8Exhibit B was two Victim Impact Statements by Peter Ferguson. Your offending has clearly had a profound impact upon him. He stated that since returning to work there are occasions where he feels anxious dealing with offenders during the arrest phase. Prior to your assault, he states that he was usually calm when dealing with suspects or offenders. In the aftermath of the assault he was unable to eat and lost weight. Further, he had difficulty sleeping and would wake through the night having flashbacks as to the incident. He also required the assistance of a counsellor in dealing with the lasting effects of your assault upon him.
9More recently, in March of this year, he was required to undergo further surgery to correct the internal lip injury caused by your assault. He stated that proper functioning of his lip is still impaired and he does not expect normal functioning to ever return.
10On 1 February 2018, you, via your legal representatives, made an offer to plead guilty to Charge 2, being the assault matter. Initially this was rejected by the prosecution. However, subsequent to you being committed for the trial the matter then resolved on the basis upon which you ultimately pleaded guilty before me.
11In the circumstances, the plea of guilty is to be regarded as one made at an early opportunity. Furthermore, I find that it is a plea of guilty consistent with an acceptance of responsibility for your actions and with the desire to facilitate the administration of justice. On the day upon which you were arrested, being 12 October 2016, you were remanded into custody. You were then released on bail on 16 February 2017. You were then remanded again on 9 March 2017 in relation to offences committed in late February.
12You were ultimately sentenced at the Latrobe Valley County Court on 16 August 2017 for these offences and received a sentence of imprisonment of five years and six months, with a non-parole period of three years and three months. Therefore, you are currently undergoing that sentence. The offences for which you received your current sentence have a concerning similarity to the ones before me. Among them was a charge of intentionally causing serious injury and a charge of prohibited person using a firearm.
13Indeed it is disturbing that someone so young has already amassed such a serious and significant prior criminal history. Prior to the imposition of the current sentence, you previously appeared before the Latrobe Valley County Court on 5 February 2014 after having pleaded guilty to charges including causing injury intentionally, reckless conduct endangering life, and prohibited person carrying a firearm. On that occasion the victims were your mother and your sister.
14You were only 19 years of age at the time of that offending, however, a sentence of adult imprisonment was imposed rather than youth justice detention. On that occasion you received a sentence of imprisonment of two years and eight months, with a non-parole period of 15 months. I was told that you were released on 12 May 2016 after having served the full sentence. These offences were then committed some six months subsequent to your release from imprisonment.
15As already observed, despite your youth you have amassed a substantial criminal history. On the two occasions outlined you have pleaded guilty to serious offending, not the least of which involves being a prohibited person possessing or using a firearm. Therefore, in spite of your relative youth, specific deterrence has a role to play in the sentencing exercise.
16In the course of the plea in mitigation before me, a question arose as to the application of section 10A(1) of the Sentencing Act 1991 (Vic).
17That section, if applicable, requires that upon imposing a term of imprisonment on Charge 2 the court should fix a non-parole period of not less than two years, unless the court finds under s 10A that a ‘special reason’ exists. In the course of submissions before me, the prosecution contended that the mandatory nature of s 10AA dictates that a new minimum non-parole period must give effect to these provisions and be increased by at least the statutory amount, which in this case is two years.
18In response, Ms Clark, on your behalf, while conceding that a term of imprisonment was applicable, submitted that s 10A was triggered. She argued that in your case s 10A(2)(e) applied, being that there were substantial and compelling circumstances that justified ‘special reasons’. Her contention was that the substantial and compelling circumstances were constituted by three factors.
19Firstly, the fact that you are undergoing a substantial sentence of imprisonment will require the imposition of a new non-parole period. It was contended that the application of section 10AA in your case would preclude the operation of the sentencing principle of totality, which is intrinsic to the setting of the new non-parole period. Secondly, she relied upon your early plea of guilty. Thirdly and finally, the objective gravity of the offence was raised, the subject of Charge 2, which she argued was at the lower end of the spectrum.
20In the course of argument I was referred to the Court of Appeal decision of DPP v Hudgson [2016] VSCA 254.
21There, in its analysis of the import behind the use of the word "compelling" in this particular context, the Court stated that it is a word that ‘connotes powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors typically present in offending of this kind’[1]. Furthermore, the Court made clear that the burden imposed upon an offender who seeks to escape the operation of s 10A is a heavy one and not capable of being lightly discharged.[2]
[1]DPP v Hudgson [2016] VSCA 254 at [112]
[2] Ibid at [115]
22In my view, none of the three factors relied upon, either individually or cumulatively, constitutes substantial and compelling circumstances that justify the departure of the application of s 10AA in your case.
23In setting a new non-parole period I am, however, mindful of the totality principle and the need to avoid the imposition of a crushing sentence, particularly in light of the fact that at the time of the commission of these offences you were still a youthful offender. There also lies a real risk that you have already become institutionalised. This is not in the community's interest. Thus, in setting the new non-parole period I have had regard to these matters and to the application of s 10AA.
24I turn now to your personal circumstances. As already observed you are now 24 years of age. You are the fifth of six siblings, with an older brother, three older sisters and a younger sister. You hail from a dysfunctional, chaotic and disengaged family. You have never met your father as he left before you were born. However, you have previously described your relationship with your mother and siblings as good. You were 12 years old when you experienced your first interaction with the criminal justice system, and left the family home at age 15 when you were sent to detention in a youth justice centre.
25Your literacy and numeracy skills are estimated to be at Grade 5 level. You left school after completing Grade 6 when you were expelled. Not surprisingly, given the amount of time you have spent in custody in your teenage and early adult years, you have a minimal employment record. You have never married and not fathered any children. Your IQ has previously been assessed to fall within the borderline range. You commenced using alcohol at the age of 14, however, your drug of choice more recently has become methamphetamine.
26You have previously attributed most of your offending behaviour to your methamphetamine addiction and being affected by it at the time of your offending. Exhibit 2 on the plea in mitigation was a report dated 20 January 2014 authored by Mr David Ball, forensic psychologist. On that occasion, he assessed you as having significant antisocial features in your personality, and ultimately was of the view that you satisfy the DSM-5 criteria for an antisocial personality disorder.
27When sentencing you in 2014 and 2017, the sentencing judge referred to this fact and on each occasion the sentence was moderated slightly by dint of that diagnosis. However, on the plea in mitigation before me, no submission was made in accordance with the principles outlined in Verdins. I do, however, take account of the diagnosis referred to by David Ball as relevant to your personal circumstances.
28In 2014, Mr Ball opined that your rehabilitation and management in the community presents with a number of challenges. You have a history of rapid relapse into drug dependence and violent acting out in the community. Furthermore, in his opinion your drug addiction, dull intellect and antisocial personality have impaired significant aspects of your self-control and reduced your ability to plan and execute positive and self-sustaining behaviour. I note, however, that this assessment is now four years old.
29More recently you have taken advantage of programs directed towards rehabilitation within the prison environment.
30Exhibit 3 was a letter from Melissa Pardy, psychologist. In July of this year, whilst at Barwon Prison, you completed a drug and alcohol treatment program. She describes your engagement with this program as an indication of your high level of motivation and commitment to behavioural change. You were, therefore, considered an appropriate candidate for the sustaining change program. Also placed before me was exhibit 4, which was a bundle of urine screens from 27 June 2017 to 29 October 2018, all of which tested negative with the exception of your daily dosage of methadone.
31Prior to the receipt of this material, I was of the view that your prospects of rehabilitation, despite your relative youth, appeared rather dim. The fact that you are now using your time in custody to further your path towards rehabilitation is positive and is to be encouraged. In that vein there appears to be some glimmer of hope for you in the future, Mr Chircop, should you continue to embrace programs of the kind described in exhibit 3.
32Please stand, Mr Chircop.
In relation to Charge 1, being a charge of prohibited person possess firearm, I convict and sentence you to a period of imprisonment of two (2) years, six (6) months. In relation to Charge 2, being a charge of recklessly cause serious injury, I convict and sentence you to a period of imprisonment of five (5) years. In relation to Charge 3, being a charge of possess drug of dependence, I convict and sentence you to a period of imprisonment of three (3) months.
33In relation to Summary Charge 3, being a charge of possess cartridge ammunition, I convict you and impose an aggregate fine of $1000.00. In relation to Summary Charge 17, being a charge of possess controlled weapon, I convict you, and impose a period of imprisonment of fourteen (14) days. In relation to Summary Charge 19, being a charge of possess a schedule 4 poison, I convict you and impose an aggregate fine of $1000.00.
34In relation to Summary Charge 22, being a charge of possess cartridge ammunition, I convict you and impose an aggregate fine of $1000.00. I order that twelve (12) months of the sentence on Charge 1 be served cumulatively with the sentence imposed upon Charge 2. I order that all other sentences be served concurrently, with the sentence imposed upon Charge 2, and upon one another.
35That makes for a total effective sentence of six (6) years’ imprisonment. Pursuant to s 14 of the Sentencing Act, I impose a new non-parole period of three (3) years, ten (10) months, effective from today's date.
36Pursuant to s 18(4) of the Sentencing Act, I declare a period of 127 days served as pre-sentence detention, and I note that such declaration be made in the records of the court.
37Pursuant to s 6AAA of the Sentencing Act, were it not for your plea of guilty, I would have imposed a sentence of eight (8) years’ imprisonment with a non-parole period of six (6) years. The application for forfeiture and disposal made by the prosecution is granted. Yes. Any other orders?
38MR McCULLOCH: May it please the Court. No, Your Honour.
39HER HONOUR: You may be seated, Mr Chircorp. Yes. Adjourned until 10.30 Monday. Thank you, Don.
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