Director of Public Prosecutions v Da Vinci (Michael)
[2015] VCC 502
•27 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-13-02456
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL DA VINCI |
---
| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 March, 1 & 20 April 2015 |
| DATE OF SENTENCE: | 27 April 2015 |
| CASE MAY BE CITED AS: | DPP v Da Vinci (Michael) |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 502 |
REASONS FOR SENTENCE
---
Subject:Trial – sentencing
Catchwords: Causing serious injury recklessly - possess, carry or use unregistered long arm
Legislation Cited: Sentencing Act 1991
Cases Cited: Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
McAleer v The Queen [2015] VSCA 4,
Sherritt v The Queen [2015] VSCA 1
Marocchini v The Queen [2015] VSCA 29
Sentence:15 months' imprisonment plus 3-year CCO
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP on 30/3/15, For the DPP on 1/4/15 | Ms K. Churchill Mr J. Baker | Office of Public Prosecutions |
| For the Accused on 30/3/15 and For the Accused on 1/4/15 and | Mr A. Jackson Ms M. Walker | Melinda Walker |
HIS HONOUR:
1Michael Da Vinci, you have been found guilty by jury verdict of one charge of causing serious injury recklessly and one charge of possessing, carrying or using an unregistered longarm.
2Causing serious injury recklessly carries a maximum penalty of 15 years' imprisonment and possessing, carrying or using an unregistered longarm carries a maximum penalty of 240 penalty units or 4 years' imprisonment.
3You were born on 24 September 1987 and were aged 25 at the time of the offending. You are presently aged 27.
4You do have a criminal record about which I will go into more detail later.
5The circumstances of the offending for which you are now to be sentenced are the subject of disagreement between the prosecution and the defence.
6You faced trial, along with your brother Jake, for causing serious injury intentionally. Causing serious injury recklessly was an alternative.
7The prosecution case, relying on the witness Peel, was that Peel came to your residence shortly after midnight to remonstrate with you and your brother and was immediately confronted by you holding a shotgun.
8Your evidence, contained in your record of interview, was that you were at home with your brother when Peel burst through the front door and immediately assaulted you. At one stage Peel had a shotgun.
9
It was not in issue that the victim had a shotgun wound inflicted at close range to the calf of his right leg and that it was extensively injured to the extent that his right leg was amputated below the knee. There was no issue that the injury was anything other than serious.
10The prosecution submits that the jury's verdict is consistent with the prosecution case - that the jury has accepted Peel's evidence that he entered your residence, was confronted by you brandishing a shotgun, there was a scuffle, you walked up to him, threatened him, including saying ".. I'll shoot you" and as he was walking out you shot him to the calf of his leg.
11Whilst the jury has not been satisfied beyond reasonable doubt that the firing of the shotgun was intentional, the verdict of being satisfied beyond reasonable doubt that it was reckless remains consistent, argues the Crown, with Peel's version. That is, the jury could reasonably have inferred that you fired the gun with the state of mind of realising the probability of causing serious injury but not intending to cause serious injury.
12The defence submits that the jury's verdict, finding “not guilty” of the element of intention but “guilty” of the element of recklessness, reflects it having rejected the essential evidence of Peel and is consistent with the jury accepting your version of events as set out in your record of interview. In basic summary, this is that Peel burst into the residence, immediately assaulted you, there was a wrestle in the kitchen with you and Peel, you believed that someone else was also present, you managed to get the shotgun off someone and the subsequent discharge occurred during a wrestle when both you and Peel were struggling for control of the gun.
13
It is difficult to determine who originally produced the shotgun. On the prosecution case no-one other than Peel, you and your brother were present. On Peel's evidence you had the shotgun from the beginning. In your interview you stated that you believed that there was another person present, that person was wrestling with your brother, that person had the shotgun and you grabbed it. Jake was fighting with the other person and Peel began struggling with you for the gun when it went off.
14There was evidence of unexplained calls by Peel to others shortly before the incident. The nature of the shotgun recovered was also inconsistent with the type of shotgun described in the empty shotgun case found in Jake's bedroom.
15Following the plea in mitigation I invited the parties to return to make sentencing submissions should I determine that the jury's verdict was consistent with it having rejected the evidence of Peel.
16My concern about whether the jury has accepted the evidence of Peel as to the immediate circumstance of the shooting is based on the following.
17If the jury had accepted Peel's version, it would seem unexpected that it would have found that the act was not intentional. That evidence would be inferred from Peel's evidence that you:
· threatened to shoot Peel,
· shot him in the manner described
· to the leg at very close range (less than 6 inches)
· as the victim had turned
· and was walking away.
18It seems highly unlikely to me that the jury would regard shooting with a shotgun at such close range as capable of inferring a reckless state of mind as to causation of serious injury as opposed to an intentional one.
19On the other hand, the jury may have rejected Peel's evidence and accepted your account that you:
· grabbed the gun, not having first produced it,
· were in possession of it, and it was pointed at Peel during the course of a struggle with Peel,
· Peel was trying to hold the barrel,
· your finger was on the trigger,
· the gun has discharged.
20Significantly, after the jury retired, over time they asked for a further direction on the meaning of “reckless”. On 2 March they asked the further question, "Please explain/clarify the difference reckless." On the afternoon of the following day, they asked another question: "Can we have a comparison of the definition of reckless and accident?"
21There was no basis for consideration of accident on the evidence of Peel. Neither counsel developed any submission in their final address as to a finding of accident or how “recklessly cause serious injury” might be inferred on the evidence. It was simply expressed as an alternative finding on the prosecution case and the defence, having lost a submission that it should not be left to the jury, went to the jury on the submission that it was all or nothing, that if the jury was satisfied that you shot Peel in the manner described by him, that would amount to intentionally cause serious injury. The defence submission was that the jury could not regard Peel as a witness of truth and therefore should reject his evidence, thereby having a reasonable doubt and acquitting you on both counts.
22It would seem consistent that the jury questions, particularly the second, indicate that the jury, having rejected the account of Peel, were considering whether they were satisfied beyond reasonable doubt that you were guilty of recklessly causing serious injury or accident on the basis of your record of interview that the gun went off in the course of a struggle when you were in possession of the gun. The determining issue for them may then have been that on your account your finger was on the trigger, the jury then concluding that your conduct was reckless.
23The credibility of Peel's evidence had been heavily criticised by defence counsel. Peel's assertions that he knew nothing about the cultivation of cannabis were in clear contrast to his previous convictions for such cultivation and his adamant assertion that he knew nothing about a crop of cannabis growing at the address of the shooting was demonstrably inconsistent with the clandestine CCTV footage of him removing cannabis offcuts in plastic bags. This, and his manner of giving evidence, gave ample scope for the jury to have been significantly sceptical as to the veracity of his account of the shooting.
24Nonetheless, a finding by the jury on the way I have posited above would not appropriately represent the way in which the case was run by either the prosecution or the defence, nor would it have been an appropriate way in which to find recklessly cause serious injury proven, because even with your finger on the trigger, the account does not suggest that you intentionally fired the gun; what is posited is that the gun went off unintentionally during the course of the struggle. If the jury had accepted your account, they would have been bound in my view to conclude that they could not be satisfied beyond reasonable doubt that the firing was not accidental which would have meant an acquittal on both counts.
25It is my view therefore that the verdict is consistent with the jury having accepted Peel's evidence that he was shot in the calf of the leg from close range as he was leaving the premises but that your state of mind at that time was reckless rather than intentional. In my view it is likely therefore that they have rejected your account concerning the production of the shotgun and the circumstances of its discharge.
26
You were arrested in May 2013 and remanded in custody. You spent
474 days in custody before being granted bail on 11 September 2014. You had a difficult time whilst in prison, about which I will go into more detail later.
27A victim impact statement was tendered. In it, Mr Peel describes the emotional, physical, financial and social impact of the injury he has suffered. Mr Peel's life has changed and he gets frustrated by the many things he can no longer do that he previously enjoyed. He experiences nightmares, has become hyper-vigilant and is forced to rely at times on other people to do things for him. This has reduced his independence. He has suffered financial loss and feels socially isolated.
28I now turn to your personal circumstances.
29As I noted earlier, you are 27 years now, you were 25 at the time of the offending and you have a criminal history.
30Your prior instances of offending culminated in an appearance in the Geelong Magistrates' Court in April 2010, when you were 22 years of age, where you were convicted and placed on a Community-based Order for 12 months for charges including using and possessing cocaine, being drunk in a public place and, relevantly, recklessly causing injury and reckless conduct endangering serious injury.
31I note the circumstances explained by your counsel in that case that a bottle was thrown when you were intoxicated, drugs and alcohol were involved and that the principal disposition, the Community-based Order, was successfully completed.
32There are no subsequent or pending matters.
33You grew up in Torquay and attended school until Year 9. Thereafter you commenced an apprenticeship with your father as a refrigeration mechanic. You have worked in this capacity for a company and afterwards self-employed as a contractor. You were employed for three years in the Northern Territory up to your remand in May 2013.
34Your parents separated when you were 13 and you continued to live with your brother and mother in Torquay. You also maintained contact with your father.
35You have reported that you had used marijuana from the age of 12 and this has continued, although irregularly, over the years. You also acknowledge social use of cocaine some five years ago, and heavy drinking of alcohol in your early twenties. You have said this has reduced considerably in recent years.
36The most salient feature of your personal circumstances is your mental health and cognitive challenges. Two reports from Ms Cidoni, psychologist, were tendered, as was a report from Forensicare. Testing revealed that your cognitive capacities were significantly reduced. You had associated issues of depressive symptoms, worry, anxiety and agitation whilst in custody. You became paranoid and severely depressed. You were diagnosed with psychosis and were admitted to Thomas Embling Hospital in a very reduced state.
37After your release on bail you have continued working as a refrigeration mechanic, as well as working with your sister's partner driving earth-moving equipment.
38You have been stable for the time since your release and are currently prescribed diazepam on a much more reduced state than when you were in custody. Anxiety is still present but may be largely attributable to your current circumstances with this court case.
39A significant number of people have provided written testimony as to your character. You are regarded highly for your loyalty, work ethic and skill and other personal qualities.
40Accepting the jury's verdict as I do, I accept that you initiated this incident on Peel's arrival and that it has had the terrible effect of the victim having his lower leg amputated. Your moral culpability is high.
41
In mitigation, I take into account your good work ethic, the commendable personal qualities that you have which are reflected by the character references, the support you have from your family and, in particular, your cognitive challenges and mental health vulnerability.
42I have given close consideration to the principles expressed in the recent decision of the Court of Appeal in Boulton & Ors v The Queen[1] and further expressions of the principles expressed in Boulton by that court in subsequent decisions including McAleer[2], Sherritt[3] and Marocchini[4]. I have also carefully considered the relevant provisions of the Sentencing Act 1991.
[1] Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
[2] McAleer v The Queen [2015] VSCA 4,
[3] Sherritt v The Queen [2015] VSCA 1
[4] Marocchini v The Queen [2015] VSCA 29
43In light of the circumstances of this offending: the use of a shotgun, the severity of the consequences, your antecedents and in particular, that you have a previous conviction for similar offending, I am satisfied that, notwithstanding the matters in mitigation, the purpose or purposes for which the sentence is imposed could not otherwise be achieved by a sentence that does not involve your confinement in prison and also otherwise could not be achieved by a Community Correction Order alone. In my view, the objective gravity of the offending and your circumstances require that the retributive and deterrent purposes of punishment would ordinarily take precedence and, in other circumstances, you would be sentenced to a significant term in prison.
44However, in light of the period you have already spent in custody, over 15 and a half months, the nature of that custody having been in remand, your mental health and how that broke down whilst in custody causing you to experience great hardship including hospitalisation, your age and your prospects of rehabilitation, I am satisfied that no further time is necessary to be served in prison if the punitive and deterrent as well as rehabilitative provisions capable of being achieved by the imposition of a Community Correction Order are included in your sentence.
45Mr Da Vinci, would you please now stand.
46On Charge 2 of causing serious injury recklessly, you are convicted and sentenced to 15 months' imprisonment.
47On Charge 3 of possessing, carrying or using an unregistered longarm, you are convicted and sentenced to one month's imprisonment.
48I do not propose to order any cumulation on the basis that the possession of the shotgun was fundamentally bound up with the offence involving its use, represented by Charge 2.
49The total effective sentence is 15 months' imprisonment. The sentence starts today.
50Pursuant to s.18(1) of the Sentencing Act, the time you have already served in custody in relation to these charges, namely 474 days is reckoned as time already served under this sentence. Accordingly, you have already served the full term of the custodial portion of the sentence and will not be required to return to prison. Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 474 days be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
51On Charges 2 and 3, you are also ordered to serve a Community Correction Order for a period of three years.
52The order commences today and ends three years from this date. The corrections centre you will attend is the Geelong Community Correctional Services at Level 5, 30A Little Malop Street, Geelong and you must attend there within two clear working days of today, that is, by 4 pm this Wednesday, 29 April.
53All the mandatory terms of a Community Correction Order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
·
you perform 200 hours of unpaid community work;
· you undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the regional manager;
· you undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager; and
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager.
54I believe from the pre-sentence report that you have had the mandatory terms of the Community Correction Order explained to you. However, it is appropriate that I briefly summarise them here.
55The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is enforced;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre, that is the Geelong centre, within two clear working days of the order starting and as I have already indicated, that is this Wednesday;
· you must notify the community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a community corrections centre; and
· you must obey all lawful instructions from and directions of community corrections officers. Such directions may be given either orally or in writing.
56Do you understand and agree to those conditions, Mr Da Vinci?
57OFFENDER: Yes, I do, Your Honour.
58HIS HONOUR: Thank you. If you are ill or if there are exceptional circumstances, the order may be suspended for a period of time and if your circumstances materially alter, you may apply for a variation or cancellation of the order. In either case you must notify the Geelong community corrections centre and I recommend that you obtain legal advice if any of these things happen.
59However, I must warn you that if you breach any condition of this order, you will be brought back before me and one of the options open for me is to cancel the Community Correction Order and re-sentence you on the original charges and I may also deal with you for the breach by sending you to prison for up to three months on that offence.
60So do you understand the consequences of breaching your Community Correction Order?
61OFFENDER: I do, Your Honour.
62
HIS HONOUR: All right, you may be seated for the moment,
Mr Da Vinci. I will ask you to sign the Community Correction Order shortly.
63At the plea hearing, the Crown sought disposal and forfeiture orders to which you have consented and I have made those orders today.
64I will now ask that the Community Correction Order be passed to you through your representative in court for signature. Thank you. You can leave the dock for that purpose, Mr Da Vinci. You can leave that dock now and come down just behind your counsel, thanks.
65I will countersign the Community Correction Order, Mr Da Vinci.
66It is three years so it will require some considerable commitment from you. The main aspect about that is if you are having difficulty with any of the conditions to communicate your problem to the people at the community corrections centre. Do you understand what I mean?
67OFFENDER: Yes, Your Honour.
68HIS HONOUR: Because sometimes lack of communication means that breaches are brought out and they could have been sorted out a long time ago if people are just prepared to communicate with the people they are dealing with. Do you understand that?
69OFFENDER: Yes, Your Honour.
70HIS HONOUR: All right. All right, well I think if you utilise this order in the way that it is intended, you are going to find your pathway a lot clearer in life. So really make appropriate application to that order. All right. You may be seated.
71[To the custody officer] Mr Da Vinci is not required to come back into your custody. I will just leave the Bench while the other matter gets ready.
72MS WALKER: As the court pleases.
73MS CHURCHILL: As Your Honour pleases.
74(At this stage the court proceeded with another matter.)
‑ ‑ ‑
0
3
0