Director of Public Prosecutions v Douglas
[2023] VCC 1906
•20 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 23-01261
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN DOUGLAS |
---
JUDGE: | HIS HONOUR JUDGE M. BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 October 2023 | |
CASE MAY BE CITED AS: | DPP v Douglas | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1906 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Jackson | |
| For the Accused | Mr A Moore |
HIS HONOUR:
1Darren Douglas, you are to be sentenced for one charge of recklessly discharging a firearm at a premises in disregard for safety.
2One charge of contravening a family violence intervention order intending to cause fear.
3One charge of being a prohibited person in possession of a firearm.
4One charge of being a prohibited person in possession of an imitation firearm.
5One charge of storing a firearm in an insecure manner whilst unlicenced.
6And, one charge of possessing a drug of dependence.
7Those are the indictable charges before me.
8The applicable maximum sentences are 15 years' imprisonment for recklessly discharging a firearm at a premises; 10 years' imprisonment for both possessing a firearm and possessing an imitation firearm as a prohibited person; five years' imprisonment for breaching a family violence intervention order; four years' imprisonment for insecurely storing a firearm and one year imprisonment for possession of a drug of dependence.
9
You are also to be sentenced for the summary offence of committing an indictable offence on bail. (Maximum sentence three months' imprisonment). That is
Charge 1 on the indictment, the recklessly discharge of a firearm offence.
10You pleaded guilty before me on 11 October 2023. When interviewed by police on 21 December 2022, you made no admissions to the most serious offending (that is, discharge of a firearm at a premises and the breach of a family violence intervention order). You made false denials. However, in July 2023, committal went by hand-up brief and you entered a plea of guilty. I was told that that followed negotiation and, I have presumed, withdrawal of some charges.
11You receive the benefit of your plea of guilty and that level of cooperation in the investigation and proceeding. Your plea was early. It has accepted responsibility, expresses remorse, and has facilitated the interests of justice. That utilitarian benefit is enhanced, given the impact albeit now lesser impact, of the COVID-19 pandemic upon the criminal justice system.
12
At your plea hearing, also on 11 October, Mr Moore for the Crown tendered a written prosecution opening and the victim impact statements of Suzanne Featherstone and Scott Higgins. This morning, or since then, I have been provided with a document stating the situation and distances in respect of the property where the shooting occurred. That was raised with Mr Jackson this morning. Mr Jackson, for you, tendered the forensic psychological report of Ian McKinnon dated
29 August 2022, a letter of character reference made by two friends, your police statement, dated 16 January 2022, in respect of offending against you at your home on 15 January, and hospital and medical records of injuries suffered by you in that offending.
13Mr Jackson provided an outline of plea submissions on 11 October, and a second brief outline today.
14
I have now received the community corrections order assessment report of Angela Berry of Community Corrections. It is dated
16 October 2023.
15The circumstances of offending are comprehensively set out in the tendered prosecution opening, which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf, not challenged by the Crown.
16You were in a very long term relationship with the victim, Susan Featherstone. This deteriorated and broke down against a background of family tragedy, particularly, the sudden death in 2016 of your 19-year-old son because of anaphylactic reaction and then soon after the loss of a granddaughter, aged only nine months. In 2020, you suffered injuries in a workplace incident and could not work. Your mental health declined. There was substance abuse. The relationship ended in late 2021. It was a bitter and confrontational ending and then aftermath. There had been ongoing conflict throughout 2022, which includes offending against the other by both, mutual intervention orders and multiple breaches of those.
17
In December 2022, when this offending before me happened,
Susan Featherstone was in a relationship with Scott Higgins, a former friend. In January 2022, you were attacked by a number of people at your home and received serious head and facial injuries. Susan Featherstone faces a plea hearing on 10 November at the County Court for her role in that. Scott Higgins has also been charged and faces trial.
18
On 20 December 2022, Susan Featherstone and Scott Higgins were at his home, a rural property near the township of Kilmore. It is a relatively isolated area with distances of about 260 to 860 metres from neighbouring houses. The house is about 350 metres from the road. At about 11.40 pm, you had driven there. From the roadside, therefore about 350 metres away, you discharged a single shot by
a .22 calibre rifle, striking the front door of the house. The bullet penetrated the wire security door and indented the main timber door. It dropped to a position between those doors. You drove away.
19Susan Featherstone and Scott Higgins were of course very frightened. She rang neighbours and the police for help.
20
Investigation led to a search at your home in Wallan on the following day. In your vehicle there police located the .22 Magnum Calibre rifle, ejected spent casing, and found assorted ammunition including
.22 Calibre. There were 44 rounds of shotgun and .22 ammunition. Also found, during the search of the home, were two imitation handguns, an imitation rifle, jars of chopped cannabis and two small plants.
21As to the firearm possession charges, you are and were a prohibited person because of intervention orders against you. You are not able to hold a firearm licence.
22
The two victim impact statements tendered contain a good deal of inadmissible material, reflecting the ongoing animosity and conduct between you and
Susan Featherstone. As to this offending, Susan Featherstone describes fear, anxiety and reflects upon the hurt of being treated in this way by someone who has been close to her. She takes medication for her mental health. She has nightmares and intrusive thoughts about what could have happened; for example, thoughts about her grandchildren if they had have been there. They do not go to Scott Higgins farm now. She does not look after herself as well as she did. She states that her treatment for cancer is compromised.
23Scott Higgins describes lack of sleep and nightmares. He fears sounds at night. He feels depressed and takes medication. He states he suffers fear and fear for the future. He states that there are ongoing threats, which he does not seem to attribute to you and reflects ironically on whether it was you who did the shooting.
24I am not complete. Unsurprisingly there has been significant victim impact caused by this offending, the offending before me. That impact must be taken into account in my sentence of you.
25You are a 54 year old man awaiting this sentence in remand custody. You have been in that custody since arrest and then remand on 22 December 2022. You grew up in the Lalor, Epping area of Melbourne, in a family of your parents, two sisters and a brother. Your natural father left the family when you were three. Your mother re-partnered when you were 12. You have had good relationships with the family. Your stepfather passed away earlier this year. In remand you were unable to attend his funeral.
26You completed Year 12 at school, then a boilermaker's apprenticeship. You worked in that industry for a number of years, later qualifying as a nurse and working in that over time. You returned to work in the metal trades and you were employed by the same engineering firm in Wallan for over 20 years. The workplace injuries of 2020 ended that.
27You met Susan Featherstone when 20. You had three children together and it is clear there are a number of grandchildren.
28
You have a distant and limited criminal history. There are three court appearances in 1989 to 1991, now over
30 years ago, when you were in your very early 20s. You were fined for possession of an offensive weapon in March 1989, aged 19. There is a pending matter, breaches of intervention orders protecting Susan Featherstone. It is to be heard at the Magistrates' Court on 23 October.
29It can be said, that, until the tragedies of your family and personal life and your difficulties in managing those, you had lived a functional, productive adult life.
30Forensic Psychologist, Ian Mackinnon diagnoses complex post-traumatic stress disorder which currently presents at a moderate to severe level. Mr Mackinnon goes on to state, I quote,
‘In my opinion, likely identifiable antecedents to Mr Douglas's CPTSD, were the deaths of his son and his granddaughter in about 2106, a workplace accident in 2020, the violent home invasion he suffered in 2021, associated threats he has apparently experienced in recent years, and his current imprisonment.'
‘In my opinion, symptoms associated with Mr Douglas's CPTSD, that he reported, evinced and may be inferred include flashbacks, rumination, intrusive thoughts, avoidance behaviour, anxiety, depression, sensitivity to environmental queues and triggers, nightmares, degraded memory faculties, difficulty in concentrating and persevering on mental tasks, low frustration tolerance and emotional dysregulation. These symptoms appear to be further complicated by the high level of grief that Mr Douglas continues to suffer with.'
31Mr Mackinnon states the opinion that this condition has contributed to the offending, I quote,
‘...by degrading his ability to apply sound reason and good judgment fuelling emotional dysregulation and poor impulse control and lowering his ability to tolerate frustration. At the time of the offences Mr Douglas appears to have been labouring with very high levels of anxiety, fear and a sense of helplessness...'
32It was not put by Mr Jackson that the primary limbs of the R v Verdins, for example, lesser moral culpability, are relevant under those principles. I do find that imprisonment is a greater hardship because of your mental health and there is a likelihood of further deterioration of your post-traumatic stress disorder symptoms.
33You have used cannabis and alcohol over your life, cannabis since teenage. This was moderate. However, use of that and excessive drinking affected your life increasingly after the loss of your son and then granddaughter. You state that you have stopped drinking and have greatly reduced the level of cannabis you smoke, using it for sleep and pain relief.
34
You have also suffered physical health problems. In 2007 there was an operation theatre event, during a hernia operation, which placed you in danger. There was the workplace accident which ended your employment. More recently in 2022, you were, as I have said, attacked at your home by a number of people.
Susan Featherson, Scott Higgins and others have been charged with offences arising out of it. You suffered serious facial fracture injuries, including to your nose and eye socket. Your tendered police statement describes a frightening, violent attack with multiple assailants, weapons and, as I said, substantial injury.
35
I have also been advised since 11 October that you have been recently tested and diagnosed with kidney damage. You were not able to attend the funeral of a close friend on 18 October. Mr Jackson put other matters of offending and conduct against you by your
ex-partner. I am in no position to make findings about that.
36This was serious, dangerous offending. You fired at the door of the home, where or near which a person could well have been. Victims were badly frightened in their home, at night, in a remote setting. You very seriously breached the court order protecting your ex-partner. Misuse of firearms badly threatens the safety of the community. Shooting at a premises is seen as conduct of growing prevalence. The circumstances of your offending make relevant sentencing considerations and purposes of moral culpability, deterrence, that is both general and specific deterrence, the need to condemn what you did and proportionality punish it. General deterrence is a particularly relevant purpose. Community protection also has relevance.
37A sentence must be one of imprisonment beyond what you have served. However, there are also important moderating factors. They include the following.
(i) Your plea of guilty and cooperation. General remorse is more difficult to find. You present as still feeling grievance against the victims.
(ii) You have a background of over 30 years of good, pro-social behaviour. The tenderedd character evidence speaks well of you. It suffers from unnecessary criticism of your victim.
(iii) I accept that you have genuine prospects for rehabilitation and that your remand custody has already had some impact of specific deterrence. Rehabilitation for you will heavily depend on your capacity to manage what seems an ongoing hostility between you and your ex-partner. This is reflected in some of the matters put to me, on your instruction, and in the Community Corrections suitability report provided to me.
(iv)
Your personal history and circumstances at and leading to the
offending. This includes the impact of your family tragedies upon your mental health. The attack upon you in early 2022 self-evidently does not
excuse your offending. However, that and the ongoing conflict with
Susan Featherstone, considered in the context of now serious post-traumatic stress disorder condition, can be seen to explain such dangerous anti-social behaviour, not typical of you in other circumstances and in good mental health. I find this properly relevant to sentence. It should also be said, without minimising its seriousness, that the shooting offence here does not carry with it more sinister criminal aspects, sometimes present.
(v) Imprisonment thus far, has been difficult for you and will continue to be so because of your mental health and also the still ongoing impact of COVID-19 and its restrictions upon those in custody.
38These moderating factors in combination go to reduce your sentence and I find are relevant to how it should be structured. I have decided that I should impose a sentence of combined imprisonment and a community corrections order. You are found suitable for a community corrections order upon release. The community corrections order should contain elements of punishment; for example, its duration and unpaid community work (although moderated in the context of a period of custody) and rehabilitative conditions. It should also contain a specific condition that you comply with any family violence intervention order protecting Susan Featherstone. This will mean that breach of such an order will not only mean action against you under the order; but also specific breach of my sentence. You need to understand that.
39I intended imposing an aggregate sentence of imprisonment. In my view, the close connection in time and nature of the offending justifies that.
40It is the combined effect of imprisonment and the community corrections order I shall impose that in my opinion meets the relevant sentencing purposes and considerations.
41I sentence you as follows.
On all indictment charges and the summary offence before me, I impose an aggregate sentence of imprisonment of 20 months.
I declare 302 days of pre-sentence detention already served.
I also impose, with conviction, a community corrections order of two years' duration, beginning after release from prison. The usual terms apply.
42I also impose the following conditions:
That you perform 200 hours of unpaid community work.
That there be supervision.
That there be mental health assessment and treatment.
That you undertake an offence specific program as directed, that is a program specifically directed at your offending.
I also impose a special condition, that you comply with any family violence intervention order in place which protects Susan Featherstone or
Scott Higgins.
43Under s6AAA had you not pleaded guilty I would have imposed a sentence of four years, with a minimum term of two and a half year. Are there other orders by way of disposal and forfeiture, I'll sign those in Chambers.
44MR MOORE: If Your Honour pleases.
45HIS HONOUR: Now, is there anything else I need to do or say?
46MR MOORE: No.
47HIS HONOUR: No, all right. Now what we need to do is print out the community corrections order. Then I (indistinct) one necessary won't there, the summary offence create that problem, does it?
48ASSOCIATE: I don't think so.
49HIS HONOUR: All right.
50ASSOCIATE: I'll just - - -
51
HIS HONOUR: Well, we'll print it out and then I need to read, explain it to you
Mr Douglas and ask you whether you agree to it and then if you do it can be sent to you for your signature.
52MR MOORE: Your Honour, just looking at Charge 6, is a charge of possession of a drug of dependence. Now that related to some jars of chopped cannabis and two small cannabis plants. I think that, the Crown would concede that's a small quantity.
53HIS HONOUR: Does that mean there's no prison sentence?
54MR MOORE: That's right.
55HIS HONOUR: I see.
56MR MOORE: The maximum is five penalty units Your Honour.
57HIS HONOUR: All right, well I'll change the sentence in a moment.
58MR MOORE: Yes, sure.
59HIS HONOUR: Ms Merrington, you need to listen to this to change, Ms Merrington, put the - don't worry about the phone.
60MR MOORE: Charge 6 it is Your Honour.
61HIS HONOUR: Charge 6 is not on the - it won't be on the document now, that needs to be taken off. Charge 6 needs to be taken off. It's Charge 6 is it?
62MR MOORE: Yes, Your Honour.
63HIS HONOUR: Yes, the cannabis. All right, I'll state the - and bearing that in mind, I'll state the, I'll fine him $100. It's a maximum of $500 is it?
64MR MOORE: Five penalty units, yes.
65
HIS HONOUR: Yes. Which is probably about $600. Bearing that in mind, I need to state your offences, the sentence again
Mr Douglas. So, I sentence you as follows.
66On the indictment charges, recklessly discharging a firearm, contravening a family violence intervention order, being a prohibited person in possession of a firearm, being a prohibiting person in possession of an imitation firearm and storing a forearm in an insecure manner whilst unlicenced, I impose an aggregate sentence of imprisonment of 20 months and declare 302 days of pre-sentence detention already served. Why can't I Mr - rather than fine him, why can't I just include the cannabis charge in the community corrections order? I can, for a fine of $500 you can do that.
67MR MOORE: Well, it might be easier just to convict and discharge on that.
68HIS HONOUR: All right, that's what I'll do. I'll need to state that again.
On the indictable charges of recklessly discharging a firearm, contravening a family violence intervention order, being a prohibited person in possession of a firearm, being a prohibiting person in possession of an imitation firearm and storing a forearm in an insecure manner whilst unlicenced, and on the summary offence of committing an indictable offence on bail, I impose an aggregate sentence of 20 months, but declare 302 days of pre-sentence detention already served.
On Charge 6, possessing a drug of dependence I convict and discharge.
Also, in relation to those indictable charges I identified and the summary offence I impose a community corrections order with conviction, the terms of which I earlier described.
69MR MOORE: Yes, Your Honour.
70HIS HONOUR: Now, that's been printed out now, thank you. All right now, what this means is that when you're released from prison Mr Douglas, you'll be released onto a community corrections order. Those people will be in contact with you as your time of release comes up. The usual terms, it will run for two years from that time. The usual terms that you don't commit, and I hope you don't commit an offence which you could be imprisoned; that you don't attend any appointment, workplace or (indistinct) affected by alcohol or drugs or in possession of any illegal drugs. You must report to and receive visits from community corrections.
71You must report to community corrections within two clear working days at the start of the order, that will be within two days of leaving prison. You must let community corrections know within two days of a change of address or job. You must not leave Victoria without first getting permission to do from community corrections. You must obey all lawful instructions and directions of community corrections. The special provisions are 200 hours of unpaid work over the period; that you be under supervision of a Community Corrections officer; that you undergo mental health assessment and treatment as directed; and that you participate in programs that address factors related to this offending; and further the special condition that you comply with any family violence intervention order in place protecting both victims. Do you understand all of that?
72OFFENDER: Yes, Your Honour.
73HIS HONOUR: And do you agree to it.
74
OFFENDER: Yeah I agree to it, but I have this feeling there's a factor that I, there's no more - no animosity with me towards any of them anymore. I just don't want
to – don't want to have anything to do with them. That's all.
75HIS HONOUR: Well, I'm glad to hear that. And if you can maintain that and deal with your problems, which I feel great sympathy for you about. I think you'll go on to have a good life.
76OFFENDER: Thank you, Your Honour.
77HIS HONOUR: As you have had in the past, and I wish that for you.
78OFFENDER: I hope so.
79HIS HONOUR: All right, well this will be sent to you and we'll get you to sign it. All right. Good thank you Mr Jackson. Thank you, Mr Douglas. As I said, I wish you the best.
80OFFENDER: Thank you, Your Honour.
81HIS HONOUR: All right, well take him off now. Now just let me, I give this back to you.
82ASSOCIATE: Yes, sir.
83HIS HONOUR: Yes.
84MR MOORE: Your Honour, we just need a bit of a break before we resume.
85HIS HONOUR: Yes, so do I, I think. All right, well I'll just - I'll return when I'm called. All right.
- - -
0
0
0