Director of Public Prosecutions v David Joyce
[2012] VCC 1003
•20 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-00667
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID JOYCE |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 July 2012 | |
DATE OF SENTENCE: | 20 July 2012 | |
CASE MAY BE CITED AS: | DPP v David Joyce | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1003 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – guilty plea – reckless conduct endangering the person – prohibited person in possession of firearm – firing shotgun at parked car – danger of having access to firearms when angry and impaired by alcohol – past history of retaliatory assaults – general deterrence – denunciation – extensive criminal history – specific deterrence
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C Lee | OPP |
For Accused Joyce | Mr J. McQuillan | Doogue & O’Brien |
HER HONOUR:
1 David Joyce, you have pleaded guilty to one charge of being a prohibited person in possession of an unregistered firearm and one of reckless conduct endangering the person.
2 The events occurred on the evening of 23 October 2009. On that night a man by the name of Mustafa Kundarachi was meeting with some friends of his at a factory complex in Maffra Street in Coolaroo. They were apparently using the premises as a meeting place for the Hume Fishing Club. In the same area was your business premises, DJs Performance Engine Rebuilds. You and your wife, Ms Dowdle, were also in the area that night at your business premises. You had apparently gone back there after dinner, you had a considerable amount to drink, and for reasons I find difficult to understand for a man of 36, you were doing burn-outs in the car park.
3 Mr Kundarachi approached you while you were doing the burn-outs and told you to stop. You drove your car back into your building at DJ Performance Engine Rebuilds but your partner, Ms Dowdle, came out and immediately started yelling verbal abuse at Mr Kundarachi. That led him to call 000. Ms Dowdle asked Mr Kundarachi whether he had done that and when he said he had she verbally abused him again and threatened him saying "I have a gun, I'll shoot you." Somebody in Mr Kundarachi's group heard her saying words to similar effect but including saying that she had plenty of bullets. You then came out from DJ's premises and started swearing at Mr Kundarachi and threw a punch at him. Mr Kundarachi evaded that punch but punched you back. On the agreed summary of facts that is described as "in self-defence."
4 The incident further escalated when Ms Dowdle re-appeared from the premises, this time armed with a knife, with which she tried to stab Mr Kundarachi. He, avoiding the stabbing, punched her to the face. He then retreated back into the factory complex where he and the other members of the Hume Fishing Club had been, but Ms Dowdle followed him. This time she had a small sledge hammer and threatened to damage cars belonging to members of the fishing club, before going back to DJs. She came out again. This time she knocked on the front window of the premises that everybody had retreated into and made threatening hand gestures, demonstrating a gun and saying "You're dead", and things like "Boom, boom."
5 Mr Kundarachi and his group ignored Ms Dowdle who went back to your premises. At some stage, whilst they were still inside, some tyres of the cars of one of the occupants had been let down. That meant when they came out some people had to fix the tyres before the owner of that car could drive off. So there was a group of people gathered around the car, which was parked not far from DJs. While they were around the car you came out, this time armed with a shotgun. You were holding it initially with the barrel pointed up, and you said, "You're already dead, I'll kill you." One of the group came towards you. You put the shotgun down behind your back, pointing it downwards. It discharged into the ground at your feet.
6 Not surprisingly Mr Kundarachi decided it was time to go. He was walking towards his vehicle when you let off another shot from that gun, and as the photographs that were tendered show, his car was peppered with pellets. The force of the impact was such that you can clearly see in the photographs one pellet has gone through the back of the headrest of the car, out through the front of the headrest so you could see the wadding or the padding material forced out with the shot. The shot still proceeded with sufficient force to go through the windscreen and shatter it. Shortly after that you, Ms Dowdle, and your two young children were seen driving away from the scene. That means although they did not actually witness it, they were present in the premises whilst all of this was happening.
7 A police examination of the scene showed the shotgun pellets and the area of damage, and the photographs have shown that.
8 It was not until the following day that police intercepted you and Ms Dowdle as you were driving away from your home. Your car was searched and a shotgun was found in the boot of the car. It was apparently in two parts but it had a live shell in its rear barrel.
9 When interviewed you told the police that you'd gone back to the factory after dinner, you had had a few drinks, you were being a silly "dickhead" and you had done a burn-out in the driveway. You acknowledge it was that that had provoked the incident. You explained your conduct by saying you were putting your car away when one of the men came over and hit you in the jaw and then Ms Dowdle started firing up. You said it then escalated, there were about 20 of them outside the factory, that one of them had kicked Ms Dowdle in the jaw after he had already hit her a couple of times and it was then that you got the gun out, put it together, and as you described it, "pretty much flipped it." You said the first shot discharged when the gun was behind your back and you had discharged it without you realising. You said that you had actually been hit in the back of the leg by one of the pellets which it had hit the ground and ricocheted into your leg. You maintained that the only other shot that you fired was one straight up in the air. That is palpably untrue. You denied making any threat to kill or to shoot the group. You said that you were just "pissed off" because the "bloke" had hit your "missus" and yourself. Significantly, what you also said was that you thought you were justified in the circumstances.
10 You were told of the results of the examination at the scene and where the gunshots were seen but you maintained your denial that you had shot at anyone or at the car. The significance of looking at the forensic evidence is obviously to match the pellets that were found in and around the car with the pellets that were fired from your gun.
11 You admitted that you had no licence for a gun and no permission to have a shotgun. You said that you had it for your own protection. You claimed that you had bought it about six months earlier from a person in a pub, for no specific reason. You said that you had intended to stand there and defend yourself and that your fear was that if you had not had the gun that they would have come through and bashed you. You denied that Ms Dowdle had used a knife to threaten anyone and also apparently denied that she had received any injuries apart from stubbing her foot in the factory. You also denied the children were with you. When asked your reasons for discharging the shotgun you said the first shot was accidental and the second was just to let them know that they do not come into your factory.
12 You are 38 years old, a qualified motor mechanic and a qualified fitter and machinist, with a passion for restoring and maintaining high performance cars. You had worked with your father in his panel beating businesses before developing, with his assistance but clearly with your own hard work, a business concentrating on high performance engines, making and re-building them and re-building the cars that they were housed in. At the time of these offences you had been running your own business for five years. As a result of the charges you were remanded in custody for six months and your father was unable to manage the business alone. When released on bail you started up again, but I was told you were unable to cover your overheads in the first few months and so after four months you had to close the new business down. Despite your obvious skills and your history of hard work you have been unemployed since July 2010 - that is at leas in part due to poor health that you have suffered.
13 You have ischaemic peripheral vascular disease and you have had surgery on a number of occasions. You have had three stents inserted to improve blood flow to your legs and bowel. Those circulatory problems have caused you considerable pain in your legs and abdomen before the surgical interventions improved your circulation. The reports provided to me indicate that the surgery has been effective, both in restoring circulation and relieving the pain associated with the poor circulation. You had earlier lost a toe due to that same disease. Although your condition is stable at present, the reports indicate that you are at risk of a recurrence of circulatory problems. You require regular monitoring so that any recurrence can be detected early in order to avoid the onset of severe symptoms. That is a significant matter to carry for somebody who is not yet 40.
14 You have five children, two now 18 and 15 from an earlier relationship, and three aged seven, five and not yet two, from your relationship with Ms Dowdle. I am told that your relationship with Ms Dowdle had been under strain, in part due to the blame each of you places on the other in respect to the charges you both face over these events. You have recently resumed contact with your oldest daughter, herself now a mother.
15 These matters all indicate that you have family responsibilities which you have been discharging, and now that you have recovered from your surgery, the capacity and skills to reengage in meaningful employment. They count in your favour.
16 I also take your pleas of guilty into account in your favour.
17 After a contested committal a plea offer was made to the Office of Public Prosecutions to plead guilty to the charge of reckless conduct endangering a person, to which you have now pleaded guilty, but that offer was rejected. The prosecution at that stage maintained that it could establish your guilt on the more serious charge of reckless conduct endangering life. Your trial was first listed for the middle of last year but that date was vacated due to surgery for your vascular condition. A chance meeting after that, between solicitor for the OPP and your counsel, led to a further discussion about the Crown's prospects of success of proving the more serious charge. Your original offer was reconsidered and it was ultimately accepted by the Crown shortly before the second trial date.
18 In the circumstances, I accept that your offer to plead and the time at which it was made, defines the time at which I should take into account your offer, and therefore I treat it as an early plea, not a court door one. I accept that it has utilitarian value and that the saving of time and cost to the community of a trial would have been considerable had the matters that Mr McQuillan ultimately explained to the OPP that led to it accepting the offer had been properly appreciated at the time, and therefore the plea having been able to be accepted at that time. I also accept that the delay resulting from that plea not being offered at the time and the burden to the victims in considering that they would have to face a trial and recount events, is not something that should be attributable to you, and therefore that you too should get credit for that early plea offer in its efforts to spare the victims the ordeal of having to wait a long time for resolution of the matter and to spare them the ordeal of re-living the events, as they have to do when recounting them at trial. It does make clear the need, when plea offers are put, for the basis of them to be clearly articulated and for plea offers that are well-founded to be pursued with more diligence so that the offer that you had made, which was clearly a well-advised one, could have been properly considered in a more timely fashion. That, however, I do not take as any adverse reflection on you or detracting from the weight to be given to your plea of guilty.
19 The circumstances of the offending itself reflect no credit on you at all. You were exposed to, and indeed the victim of, considerable violence in your own childhood, and the fact that it occurred when your own children were so close in the factory premises, is, in my view, a feature that adds to the seriousness.
20 Whilst your childhood circumstances of the regular exposure of violence exacted on your mother by your stepfather and violence exacted on you by him are deserving of considerable sympathy, it is of concern that you, in your conduct on this night, exposed your children to this escalating violent event, instead of protecting them from the sort of experiences that you were exposed to.
21 This is the second time where you face a court for sentencing on a charge of reckless conduct endangering a person, and it is the third time you find yourself before a court on charges involving violence or conduct endangering a person where you have reacted to circumstances and taken it upon yourself to avenge a wrong that you believe has been done to somebody else.
22 As Mr McQuillan acknowledged on the plea, it is clear that you have not learnt from the fact of being charged and sentenced in respect of those two previous reckless conduct endangering a person or assault matters, that it is unacceptable to take matters into your own hands, to seek to avenge a wrong perceived to be done to somebody else, or, as has happened on the previous reckless conduct endangering a person charge and this charge, to escalate matters by engaging in more serious violence or threats than those to which you were, or perceived you were, responding.
23 In my view there is nothing mitigatory in the reason you gave for becoming involved on this occasion. It was put that you reacted as you did after seeing Ms Dowdle had been punched and her face bloodied.
24 It is very clear that you and Ms Dowdle were the aggressors and that the two of you provoked and escalated the confrontation. Ms Dowdle verbally abused Mr Kundarachi, and when she discovered he had called the police, threatened to shoot him. It was you who then swung a punch at Mr Kundarachi, and missed, but were punched by him, as the agreed summary says, in self-defence. Ms Dowdle was punched after she had produced a knife and threatened to stab Mr Kundarachi with it. For you to seek to justify your actions in producing the firearm and shooting in the manner you did as reactive to seeing Ms Dowdle punched, is nonsense. It shows that you are still seeking to avoid taking responsibility for your actions.
25 The other matter of concern is your conduct on this night in repeatedly escalating the level of confrontation. This started with a request to stop doing burnouts. It was met with verbal abuse from your partner, and then, upon discovering that the police had been called, that escalated by leading to a threat by her to shoot Mr Kundarachi, and in an attempt by you to punch him. His landing a punch on you was met by a further threat from Ms Dowdle to stab Mr Kundarachi, and it was his conduct in landing a punch on a knife-wielding and angry assailant, that led to you producing the shotgun, and not just showing it but firing two shots. Even accepting the first went off accidentally, the second was clearly a deliberate shot and at his car.
26 You were aware that as a result of the previous conviction for reckless conduct endangering a person and intentionally causing serious injury, you were prohibited from possessing a firearm. The circumstances in which you say you acquired it and the fact that it was not registered, shows that you were prepared do what you wanted, without regard to the law. Your past conduct and your conduct on this night show that you are not to be trusted to possess firearms. The regulation of who can own firearms and the manner in which they are to be kept is in part to protect against the sort of conduct that you engaged in on this night; angry, impulsive resort to easily accessible guns when judgment is already impaired by alcohol.
27 Whether you had the firearm in the boot of your car (where it was when you were arrested the next day), or whether it had been in the factory, is of little moment. Whether you kept it in two parts or already assembled, is also of little moment. Your conduct on this night demonstrated that wherever it was, you were easily and quickly able to access it and present it for use in working order.
28 You have been before courts on 15 occasions in the past. This is the second time that you have been dealt with for reckless conduct endangering serious injury. You have one previous conviction for intentionally causing serious injury, another for recklessly causing serious injury, and two for unlawful assault. You have five previous convictions for causing criminal damage.
29 In addition, you have a dreadful driving record. You have been dealt with on ten occasions for driving whilst unlicensed or disqualified. You have a frightening number of drink-driving convictions and you have convictions for a number of other, less serious, driving-related offences. You have also in the past amassed some convictions for possession of cannabis, for minor dishonesty offences and for breaches of court orders, namely failure to appear on bail and breaching suspended sentences.
30 It is clear therefore, that so far as you are concerned, the sentence must contain a considerable component of specific deterrence, as well as general. It is also clear that denunciation and just punishment must also be given considerable weight.
31 You have already spent just under six months on remand, before being released on bail. I am told there are no subsequent and no pending charges for that two year period and I take that into account too in your favour.
32 Mr McQuillan's plea acknowledged that no sentence other than one of imprisonment was appropriate, but he submitted that the time to be immediately served should be no longer than that which you had already served on remand. I indicated that I was far from convinced of that. I have given the matter since then anxious thought. I am conscious of the fact that I should not reason from the time you have already spent in custody as the basis for fixing the sentence, or the time that you must serve, but I should start by considering what is the appropriate sentence for each offence and then to take into account totality, to fix on a total effective sentence as my starting point and then to consider whether I should suspend the sentence in whole or part, or fix a non parole period, and if so, how long that should be.
33 For the reasons I have already given, I consider the possession of firearm charge to be serious, having regard to your prior convictions, your explanation of how it was acquired and purposes for acquiring it, and the evidence indicative of the manner in which it had been stored. The maximum penalty for this offence is 15 years.
34 As far as the circumstances of the reckless conduct endangering a person charge, those circumstances make this a serious case of its type, the sentence must reflect that and the significance of your previous conditions.
35 The prosecution sentencing range I consider to be low.
36 David Joyce, on the two charges to which you have pleaded guilty you are convicted. On Charge 2, being a prohibited person in possession of a firearm you are sentence to be imprisoned for a period of two years.
37 On Charge 3 of reckless conduct endangering a person, you are sentenced to be imprisoned for a period of two years.
38 I direct that six months of that sentence be served cumulatively upon the sentence on Charge 2.
39 That makes a total effective sentence of two years and six months and I fix a non parole period of 12 months. I declare that you have spent 179 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
40 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty I would have sentenced you to three years on each of Charges 2 and 3 and I would have fixed a total effective sentence of four years. I would have fixed a non-parole period of two years and six months.
41 I have been asked to make disposal and forfeiture orders, and I will do so.
HER HONOUR: Do the sentences I have pronounced reflect what I said I intended to do and is the arithmetic correct?
MR McQUILLAN: It is, Your Honour, yes, on my calculations.
MR NIBBS: Yes, Your Honour.
HER HONOUR: Any further orders?
MR NIBBS: No, further orders.
MR McQUILLAN: No, Your Honour.
HER HONOUR: Thank you, there are the orders. Could you remove Mr Joyce please.
MR McQUILLAN: Your Honour, I wonder if I could beg one indulgence; I've got another plea at 10.30, I don't know that I'll have time to go down and see my client in the cells - could I have a very quick word with him now while he's in the dock, just to explain in essence the sentence, in case he doesn't understand.
HER HONOUR: In the circumstances I'll do that. Ms Dowdle, I understand you're in court and that you'll be distressed by this. You may speak to him but you will not be allowed to go close or to touch him, do you understand that? And when the prison officer says he must go, you must let him go. Thank you.
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