Director of Public Prosecutions v Doolan
[2013] VCC 1346
•1 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WANGARATTA
CRIMINAL DIVISION
CR-13-01306
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MICHAEL DOOLAN |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 1 October 2013 | |
CASE MAY BE CITED AS: | DPP v. Doolan | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1346 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J.S. Bessell | |
| For the Accused | Ms N. Battiato |
HIS HONOUR:
1 Mr Doolan, I am going to impose a sentence upon you of three years' imprisonment with a minimum term of 12 months. Now I have given you the courtesy of telling you what that sentence is. I would ask you to return that courtesy and listen carefully to the reasons why I have given you that sentence. It will take about 15 minutes. Take a seat for the moment, please.
2 Michael Doolan, you are to be sentenced on one charge of reckless conduct endangering life and one charge of possessing a drug of dependence, methylamphetamine. In the circumstances of this case, the maximum sentences are ten years' imprisonment for the offence of reckless conduct and 12 years' imprisonment for possession of a drug of dependence. You pleaded guilty before me on 26 September 2013. When interviewed by police on 19 September 2012, you made a full and candid confession. What led to that record of interview and confession is also significant. On 17 August 2012 you had been intercepted in a parked vehicle in Wangaratta. You were in possession of 1.5 grams of methylamphetamine. That is Charge 2 on this indictment.
3 On 17 August you were in the company of Bradley Whinray, your co-offender on Charge 1, a shooting amounting to reckless conduct endangering life. It should be said that this occurred in the context of a broader police investigation into large scale trafficking in North Eastern Victoria. Whinray is charged with involvement in that and is expected to plead guilty to charges later in these sittings. You are not said to be involved. On 17 August it seems that you were asked to provide information about the shooting incident which had occurred on 27 June 2012. You went to the Wangaratta Police Station in early to mid September; but nothing of significance happened. You were arrested on Charge 1 about a week later, on 19 September. You quickly made admissions in informal conversation with police and then, as I have said, made a full and candid confession in the record of interview. That included providing information about Whinray in the shooting incident.
4 I just stop there. Mr Bessell, am I right that I have made orders closing the court - - -
5 MR BESSELL: Yes.
6 HER HONOUR: and in relation to non-publication in relation to this proceedings?
7 MR BESSELL: Yes.
8 HIS HONOUR: You are here to hear sentence.
9 MS BATTIATO: Yes, I am, Your Honour, yes.
10
HIS HONOUR: I would not exclude the people who have come to support
Mr Doolan, given that you are satisfied and I am satisfied that all of the people in this court are in such a situation. They are all his family; is that right?
11 MS BATTIATO: Yes, that's how I understand it, Your Honour.
12 HIS HONOUR: Yes. You are all his family?
13 VOICES (from body of court): Yes.
14 HIS HONOUR: All right. I will return to my sentencing reasons. I may go back a step in case - I am unsure where I left off.
15 That included providing information about Whinray in the shooting incident. Further, you made a formal statement to police about that and your own involvement. You agreed to assist further by giving evidence against Whinray in future proceedings. Whinray had been interviewed on 14 September and had made a "no comment" record of interview. He was interviewed again on 20 and 26 September. He made admissions to the shooting (Charge 1) in the 26 September interview. It is agreed that your statement to police played a significant role in obtaining those admissions and in Whinray's decision to plead guilty to Charge 1 later this month. I was told that your police interview on 19 September led to a police raid on Whinray's home, at which the weapon used was seized.
16 Your counsel has also indicated your willingness to make an undertaking in evidence before me to give evidence against Whinray if that be necessary. The Crown did not press for that, given the circumstances I have explained.
17 You receive the benefit of your plea of guilty and a high level of co-operation and assistance to the authorities. I shall return to this. I find that you are remorseful.
18
At the plea hearing Mr Bessell tendered a written summary of prosecution opening, a number of photographs depicting the scene of offending on
Charge 1 and injury caused to the victim, William Hickmott, the victim impact statement of William Hickmott and your police statement, to which I have already referred, dated 19 September 2012.
19 Mr Marshall, for you, tendered the forensic psychological report of Aaron Cunningham dated 28 August 2013, letters of character reference by your mother and fiancée, and drug counselling reports by Caroline Menadue of Bendigo Community Health and Kate Downey of Ovens and King Community Health Service.
20 The circumstances of your offending are set out in the tendered Crown summary, which is Exhibit A. My own summary may therefore be shorter.
21 You have known Bradley Whinray for about ten years, initially at high school. At the time of the offending, June and August 2012, you had developed a heavy methylamphetamine use. Over the previous nine months you had purchased large quantities of the drug from Whinray. It is accepted that it was for your own use. You had funded this by the combination of moneys earned working on prawn trawlers in Northern Australia and income loss insurance moneys after an injury that caused this to cease. That had run out. You owed Whinray money and relied upon him for your drugs. You told police in your record of interview that Whinray thought you had been selling the drugs on.
22 Whinray had a grievance against the victim, William Hickmott. He told you that he believed that Hickmott and another had run through his home and beaten him up. Whinray had already asked you assault Hickmott as payback. This had not come to be.
23 On the night of 26 June 2012 Whinray rang you and asked you to come to his home. Soon after your arrival he produced a sawn-off shotgun. At one point you drove him to Hickmott's home and returned. You seem to have gone to the home of Whinray's brother. During this time you were smoking methylamphetamine and were affected by that. Ultimately, instructed by Whinray, you drove him to Hickmott's home in Wangaratta in the early morning of 27 June and parked nearby. You saw Whinray to load the weapon on the journey. Again instructed to do so, you went to the house and turned off the power. A little later you knocked on the door pretending to be from the power company. You returned to the car. When Hickmott came out of the front door, Whinray fired two shots. The main force of the shots struck the front door. However, Hickmott, who went to ground, received minor pellet wounds to his chest and arm. You drove away.
24 Whinray was charged with attempted murder, but that is now reduced to reckless conduct endangering life. You are charged and stand to be sentenced for aiding, abetting or assisting that offence.
25 The victim impact statement of William Hickmott describes the effect of the offence upon him. He does so in a remarkably understated way. He states that he was emotionally and psychologically affected for some months. That, he says, has largely subsided. The final part of his statement reads: "I am still affected by the shooting, but the psychological effect now is nowhere near as severe as it was then." As to his physical injuries, he states, "I am pretty sure they got all of the pellets out at the hospital and I don't have any ongoing physical concerns." The victim impact of your offence must and will be taken into account in my sentence of you.
26 Charge 2 on the indictment alleges possession of a drug of dependence. That relates to the occasion of you being found in a parked vehicle in Wangaratta, at about 2.15 am on 17 August 2012. You were in possession of 17 small clip seal bags containing small amounts of methylamphetamine, or ice. The total weight was 1.5 grams. As I have earlier stated, you were in the company of Bradley Whinray.
27 You are a 27 year old man who lives in the Bendigo area. You are the second eldest of four children. Your parents live in the Wangaratta area, where you were raised and educated. Your mother suffers serious health problems with cancer. Your family is caring and supportive of you. You are in a long-term relationship with a young woman who lives in Bendigo, but separately from you. She has a ten year old son. You are engaged to be married.
28 You left school at Year 8, returned to attempt Year 10, but left again to begin an apprenticeship in cabinet making and joinery. You are qualified in that trade. You have worked in that, as a cleaner in the snowfields and, more recently, for a number of years on prawn trawlers out of Cairns in Queensland. That is seasonal but profitable work. When not living and working in Northern Australia you lived with your parents. In 2011 you suffered a serious injury. A prawn spike stabbed through your finger, which became infected. Ultimately that led to amputation of part of the finger. A further consequence was nerve damage to another finger caused, it seems, by overuse. There was further surgery for this. You had lost part of another finger when a small child. You have not worked since the end of 2011.
29 Psychologist, Aaron Cunningham, diagnoses the psychological condition of adjustment disorder with mixed anxiety and depression, which he relates to loss of your finger. His opinion is that this has been exacerbated by drug use in 2011 to '12, your present legal predicament and fear of reprisal for your assistance to police.
30
Your criminal record states only one court appearance. In September 2011 a charge of theft was proven and you were fined $200 without conviction.
Mr Marshall explained some of the circumstances of that offending, which involved theft of firewood from a local football club. I see it as having little relevance to this offence.
31 You began using cannabis during teenage and have used other drugs since, without, it seems, serious impact including on your working life. However, in the context of your injury, loss of employment and, it seems, involvement with Whinray, you lapsed into heavy abuse of methylamphetamine. You told police, in what I find to be a particularly frank record of interview, that you had purchased approximately $10,000 worth of the drug from Whinray in amounts which led to the understanding that you were selling it on. As stated, it is not alleged that you were doing so.
32 Mr Marshall placed emphasis upon what has happened since the offending. As stated, you have moved to the Bendigo area. You were in fear of reprisal for your police assistance. You are in a stable, supportive relationship. You have addressed your drug abuse and have attended drug counselling. I accept that you are drug-free. You study at a TAFE course and are looking for employment. You support and assist your partner in care of her child.
33 This is a serious example of the crime of reckless conduct endangering life. The offence occurred at Hickmott's home. You knew Whinray's intentions and, although it is not alleged that you assisted an attempt to kill or seriously injure Hickmott, the shot was close enough to cause the injury it did. Your intoxication, whilst a part of the circumstances or context of your involvement, cannot be seen as a mitigating factor.
34 In dealing with offending such as this the sentencing considerations of deterrence, denunciation and your moral culpability are important. I bear in mind the circumstances that existed for you. You were influenced by Whinray and I accept that you were in some fear ultimately for your own safety. I find that you were truthful to the police about this. However the objective seriousness of the offence and the need to reflect particularly the sentencing purpose of general deterrence remain as primary considerations.
35 The proportionate punishment must entail a sentence of immediately served imprisonment. However there are also important mitigating or moderating factors which should go to reduce the length of that sentence from what the objectively viewed circumstances of offending alone would require. They include the following.
(1) Your plea of guilty, co-operation and remorse.
(2) Your otherwise good character, that is outside of the 2007 court appearance I have stated.
(3) Your prospects for rehabilitation. Included in that are the steps you have taken toward rehabilitation in the 12 months since the offending.
(4) Your personal circumstances leading to and at the time of offending.
(5) I find particularly important your co-operation and assistance to police. There are several aspects to this. The information you provided and statement given were valuable and effective in the ways I have described. Your assistance meant, I accept, considerable risk to you. That has affected your circumstances since. I also accept that your situation in prison will be, in a significant way, more difficult for you because of your assistance.
36 Finally, your co-operation in interview, police statement and willingness to further assist is consistent with rehabilitation and the proposition that you are unlikely to offend in such a serious way again.
37 These moderating factors should affect both your head sentence and minimum term. Ultimately I find that they should particularly be brought to bear imposing a minimum term that may allow an earlier than usual eligibility for parole.
38 Doing the best I can to take into account and weigh the relevant and often competing matters I sentence you as follows:
39 Stand up please.
40 I meant to ask you earlier Mr Bessell my understanding is that there is no pre-sentence detention?
41 MR BESSELL: I think 11 days, Your Honour.
42 HIS HONOUR: Sorry, you did tell me about that. Yes, thank you.
43 On Charge 1, reckless conduct endangering life, you are sentenced to three years imprisonment.
44 On Charge 2, possession of a drug of dependence, you are sentenced to one month imprisonment.
45 That is a total effective sentence of three years imprisonment and I set a minimum term of 12 months before you are eligible for parole. I declare, under s.18, 11 days of pre-sentence detention already served.
46 I am required to indicate the sentence I would have imposed if you had not pleaded guilty to this matter. I am required to do that under s.6AAA of the Sentencing Act. That is always a difficult task. It is particularly difficult when such matters as assistance to authorities are a significant part of the sentencing considerations. That assistance is of course closely related to and associated with the plea.
47 Doing the best I can to indicate what I would have sentenced you to but for the plea of guilty, I would have sentenced you to a term of imprisonment of five and a half years with a minimum term of three and a half years. In other words, you would have served, before eligibility for parole, a further two years.
48 Now what are the other matters that I need - - -
49 MR BESSELL: I don't think there are.
50 HIS HONOUR: What about any forensic sample?
51 MR BESSELL: No, it's not a forensic offence
52 HIS HONOUR: All right. In this case I will permit you to briefly speak to those people who have come to support you today. I think the protocol is that I remain whilst that happens. I would be obliged if you would assist with that, it can only be a short discussion before he's taken into custody.
53 MS BATTIATO: Certainly, Your Honour.
54 HIS HONOUR: If people wish to speak briefly to Mr Doolan they may do so now. It must necessarily be brief I'm sorry. If you could go down there and make - excuse me, if you could go down and just supervise what occurs. I didn't realise there was a screen there.
55 Yes, thank you. Thank you for your co-operation. Mr Doolan can be taken into custody.
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