Director of Public Prosecutions v Fletcher

[2014] VCC 1290

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00996

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY DOUGLAS FLETCHER

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 August 2014
CASE MAY BE CITED AS:	DPP v Fletcher
MEDIUM NEUTRAL CITATION:	[2014] VCC 1290

REASONS FOR SENTENCE
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Subject: causing serious injury intentionally-
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Devanny
For the Accused	Mr P. Tehan, QC

HIS HONOUR: 

1Timothy Douglas Fletcher, you were found guilty by a jury verdict upon your trial of causing serious injury intentionally. 

2In December 2012, you lived with your then pregnant girlfriend, to whom I shall refer to as L, in outer suburban Melbourne.  At about that time you worked as a plasterer-concreter.  On 18 December, a person named McGill, who was slightly younger than you, came round to your house.  McGill was involved with you in drug dealing and owed you a sum of money.  Whilst at first reluctant to come inside, you persuaded him to come in and discuss this debt. 

3Earlier in the month, McGill had been arrested with drugs on his person which were said to belong to you and for which you had expected money.  You had demanded the money before and McGill had handed you his car as part payment.  McGill was also in possession of his girlfriend's mobile phone at some point and, when he was subsequently arrested for an incident involving domestic violence, he was made subject of an intervention order requiring him to return the phone to her within two days.  So he had come round to your place to retrieve the phone, because he had given it to you in further payment.  Such retrieval was critical to his remaining on bail. 

4Once in the house, an argument arose about the debt.  You had already made threats to him about his family and the discussion about the money was proving to be frustrating.  You left the lounge, where the discussion was taking place, and when you returned you had a handgun with you.  McGill was yelling in fear, begging you not to fire upon him.  You grabbed his leg and pulled him down the couch, where he was sitting, so that he was now lying down on it.  You then shot him in the upper thigh.  Your girlfriend was very near in the kitchen.  She heard the shot. 

5You made McGill show you the wound, which had entered his upper thigh and exited high through his lower back just above the buttock.  McGill told you he was going to hospital, as he was in pain, and as he endeavoured to leave, you told him to walk normally and not limp, because you did not want anyone to know.  McGill walked onto the street and collapsed and was shortly after collected by ambulance and police.  When they interviewed McGill at the hospital, McGill lied to the police, telling them that a passing car had shot at him.  A few days later, he told police the truth in a statement.  Your girlfriend cleaned the blood up at the scene. 

6At the beginning of your plea, there was a submission made that, although the jury had been satisfied beyond reasonable doubt that you intentionally caused serious injury, nevertheless I should consider the shooting of a firearm in these circumstances as a spontaneous act lacking planning, evincing gross stupidity for which you were shocked.  I accept that in Mr McGill's statement there is a reference to you looking shocked after the shot was fired.  This may have been the case, but I cannot find that this was a matter of great weight.  You may have been surprised by the noise, the recoil, the amount of blood, any number of things, but I do not intend to speculate about those.  I agree the act was one of gross stupidity and beyond.

7But the jury found it was intentional and not reckless, having been properly directed about that, and the act of firing was spontaneous, if that is understood in its proper meaning, not triggered by a particular provocation except your anger, frustration and your desire at the time to hurt Mr McGill sufficiently to bring him round for his transgression.  Contrary to submissions made, you did not show concern, in my view.  The viewing of the injury was not a caring act, it was to ascertain the real damage you had done and was quickly followed by an injunction to walk unaffected so as not to raise suspicions.  Your shock is not, in my view, a mitigation.

8No victim impact statement was tendered; however, I can draw reasonable inferences that this serious injury caused significant pain and discomfort, was not only fortunate for its limited sequellae but it nevertheless required sutures and caused bruising and the passage of a projectile through McGill's body.

9Intentionally causing serious injury to another person carries a 20-year maximum.  By this penalty, the law indicates that this offence is very serious.  In my view, this offence by its circumstances must lie around the middle range of offences, procured as it was by a firearm being fired at close range.  After you resorted to it in an argument, you intentionally retrieved it and intentionally fired into McGill.  General deterrence must be a primary consideration in these circumstances.  Those who would resolve disputes by resorting to extreme measures and violence like the firing of a handgun into another person in order to address a dispute, must know that the court will denounce such violent behaviour as totally unacceptable in our community and will exact punishment, and stern punishment, on those who resort to it.

10You did not plead guilty and therefore have lost the opportunity for a discount on your sentence which such a plea would have entailed by law.  Moreover, your offending happened at a time when you were subject to the obligations of a community corrections order and those consequent upon a wholly suspended sentence.  The effective breaches of those court orders is an aggravating feature of the offending, for which you were subsequently dealt with and this morning I was informed of the ultimate disposition of this court, which entailed a period of imprisonment.

11In determining the appropriate sentence, of course, I take into account your personal circumstances.  You have a relevant prior criminal history.  A community corrections order, which I have mentioned, was imposed in February 2012 for intentionally cause injury and make threat to kill.  In June of that year, preceeding this offence, you were convicted for recklessly causing injury and a sentence of six months was wholly suspended.  Prior to those matters you have convictions in 2011 for a series of dishonesty and driving offences, for some of which you received periods of imprisonment. 

12In April 2011, amongst dishonesty and driving offences, you were convicted and sentenced for reckless conduct endangering life and recklessly causing injury, offences apparently related to driving for which you received periods of imprisonment.  On that occasion you were also convicted for possession of a prohibited weapon.  The record from 2011 extends back to 2005 in the Children's Court , with many appearances for driving, dishonesty offences, another possession of an unregistered long-arm in 2009 and a reckless conduct endangering serious injury in 2007.  These priors suggest you have a disregard for the law and, in particular, your nonchalance as to other people's safety and physical integrity so evident in this offence.

13I mention these priors not because in any way I increase or punish you again for those offences for which you have already received a punishment but because they are a significant factor in the evaluation of your prospects for rehabilitation, which is a matter that I take into account.  This is particularly so given your relatively young age.  At 25, although you are not a youthful offender as such, your age is an important matter to which I give significant weight.  At such a relatively young age, you have accumulated a very poor record, but the court must hold out some hope for reclamation and tailor its sentence to this hope because, in the long term, rehabilitation is in the best interests of the community.

14In your case, even though imprisonment was acknowledged as inevitable, sentence must reflect appropriate punishment and deterrence without crushing all hopes for a different future for you.  I mention deterrence because it is the other matter which your priors and background are relevant to, in the sense that, in my view, there is need for specific deterrence to play a role in this sentence.  Your record tends to show a disregard for the law and lawful behaviour.  The sentence must in part serve to dissuade you, to deter you from the offending of this type.

15I take, of course, your background into account.  You are a young man, apparently still immature for your age.  You had a background and adolescence of disadvantage with your greatest handicap being your parents.  This never augurs well for a young man.  In your case, the impact of their shambolic lives has left you ill equipped for a pro-social life and unsupported by productive and mature parenting.  It is hardly surprising that, although some people in your life see some good in you, you appear to want to be in conflict with society on a regular basis.  It is inevitably paradoxical that these people speak of your compassion, generosity and capacity when your priors bespeak of irresponsibility and lack of respect.

16Nevertheless, I take into account your background and the references which have been tendered on your behalf.  You were born in Melbourne, your mother worked in factories and as a receptionist.  You have had little contact with her for over a year now.  Your father was at some point a successful person whom you idolised.  Your parents separated when you were aged five and you went to live with your mother, who was content to let you do what you wanted, provided it did not impact on her lifestyle.  She disciplined you physically and you told a clinical psychologist, who provided the court with a report, that you hated her.

17Your father, it appears, suffered a serious physical injury and ended up addicted to painkillers and drink.  This eventually drove him to offending and to longstanding drug abuse.  He is about 50 years old and has a history of criminal behaviour and imprisonment.  You reported having a falling-out with him and spoke of him disparagingly to Mr Simmons, the psychologist who provided the report.  You had contact with your mother's family, which provided some measure of support.  You have two sisters and your older sister is a drug addict herself and has had a troubled life and you have not been close to her.  Your younger sister has had a close relationship with you.

18At school you were diagnosed with dyslexia and your academic behaviour and achievements are poor.  Having been expelled from secondary school for fighting, you attended a special school, where you appeared to improve, but ultimately secondary schooling concluded at year nine.  You undertook automotive studies commencing an apprenticeship, but you lost your job halfway for misbehaviour.  There followed a succession of jobs until you completed a roof tiling apprenticeship for three years, until you were gaoled in 2011. 

19At age 18 you began to use steroids to bulk up for gym and boxing.  You have taken courses of steroids ever since , until remanded in 2011 and that broke the cycle of steroid use.  That use may explain your aggression and anger over the six-year period in which you used it.  That use, I am told, ceased in December 2012.  You did not use other drugs in part because of your father's and sister's use.  In this context, I need not make any findings as to the background of this offence , being grounded in a drug-dealing relationship, as the jury verdict, in my view, does not concern this aspect.  And in my view this aspect adds little to the offence itself and I do not aggravate it for that purpose, because of that background.

20You are said to be abstinent from alcohol since your 21st birthday, when you drove a car onto a tree with three passengers and a police pursuit.  You had drunk to excess at that time.  You do not have a mental health history.  It is clear you have long struggled with anger and mood swings with long history of aggressive behaviour, although despite this history you have not gone to a psychologist or a psychiatrist on a long-term basis.  I was told you had access to psychologists a few times.  These feelings of anger and aggression, according to Mr Simmons, extend even at times to your own child.  These are, I was told, the youthful frustrations of a young parent. 

21Although it is difficult to know precisely what to make of such a matter, it is clear that there are unresolved and unstable factors in your make-up, including the allusion to borderline personality disorder.  These and other suggestions do not give rise, nor were they argued to give rise, to Verdins-type considerations here, but I accept that your moods are unstable.   You are impulsive, have difficulties with relationships and interactions from time to time with others. 

22There are, however, some positive signs.  You have been attending church regularly in the past with a friend, whom you respect.  You have done your best to keep in employment.  Your sister wrote a reference on your behalf in which she described your support for her at difficult times.  You have assisted her generously and in this you have shown some altruistic concern.  Your grandmother also wrote of your difficult background and has, like your sister, spoken of your devotion and affection for your family.  I have this morning received a further reference from Mr McDonald, who is from McDonald Recovering Services, who writes that you have helped him with younger kids that are part of your boxing gym, and you have endeavoured to mentor many of them and that you are a reliable worker.

23You met ‘L’ , your partner, about four and a half years ago and she is supportive of you and desirous of continuing in the relationship after this difficult period.  Your young son appears to hopefully be the strongest motivating factor in your life.  It is to be hoped that you will choose not to duplicate with him your parents' failures towards you.  I also received a letter from the director of Unique Automotive Australia, who has known you for over ten years.  His company assists disabled individuals with their transport and automotive needs.  You have, to your credit, volunteered since September 2013 on a weekly basis and he attested to our hard-working attitude, which also demonstrated a change in you as you interact with these less fortunate disabled persons. 

24I take these positive factors into account in arriving at what I consider to be an appropriate sentence with a view that, although your rehabilitation must be guarded, the hope for it is probably realistic.  I take into account for the principle of totality the fact that you have served a considerable restored term and sentence upon the breach of the community corrections order and the suspended sentence, which means that you have recently been incarcerated for a period of time, but from which I will take into account your pre-sentence detention of 218 days.

25Would you please stand, Mr Fletcher.  On the intentionally cause serious injury you are convicted and sentenced to four and a half years' imprisonment.  I fix a non-parole period of three years. But for your plea , that would have been 5 years with three and a half to serve.  I have signed disposal orders and I make an order that your biological sample be obtained from you under s.464ZF(2) for placement on a DNA database.  When a request is made for your biological sample of a mouth scarping, I should warn you that if you do not consent to such a request , police officers authorised for this purpose have the ability to obtain a blood sample by the use of reasonable force.  Do you understand what I have said?

26OFFENDER:  Yes, Your Honour.

27HIS HONOUR:  Thank you.  I don't believe I need to make any other orders, Madam Prosecutor.

28MS DEVANNY:  No other orders, Your Honour.

29MR TEHAN:  Your Honour, I say this merely for clarification, although I'm certain in my own mind, Your Honour, that the sentence by operation of law - not by any order that Your Honour has made - will be served concurrently with the sentence that he's presently undergoing.

30HIS HONOUR:  Well, my view has always been that if I don't make any pronouncement about cumulation that the sentence will be served concurrently.

31MR TEHAN:  That's my understanding too, Your Honour.

32HIS HONOUR:  And I should note that - I will note the pre-sentence detention in the records of the court and that number of course will be taken into account - - -

33MR TEHAN:  Yes.  No, I understand.

34HIS HONOUR:  - - - in an administrative fashion by the correctional services.

35MR TEHAN:  Yes.

36HIS HONOUR:  218.

37MR TEHAN:  Yes, thank you.  If Your Honour pleases.

38HIS HONOUR:  Yes, thank you, Mr Tehan.  Just give me one moment.  Yes, just hand that to Ms Devanny, thank you, David.  I see that there's - I don't know if people in the court want to take an opportunity to say anything to Mr Fletcher or not, but if that's the case I'll stay on the Bench.  You're excused, Mr Tehan.

39MR TEHAN:  Has Your Honour got another matter immediately now?

40HIS HONOUR:  Not immediately, but I've made it a practice not to leave the Bench whilst there's a possibility of people engaging with the prisoner.

41MR TEHAN:  All right.  I'd like to engage with him just shortly, Your Honour.

42HIS HONOUR:  Well, I'll stay on the Bench.  If you know whether any - - -

43MR TEHAN:  I don't mind - - -

44HIS HONOUR:  Do you know whether anybody else wants to in the court?

45MR TEHAN:  I'm not sure, Your Honour.  I think they may. 

46HIS HONOUR:  That's all right.  If you're with them, Mr Tehan, I don't think I need to remain.

47MR TEHAN:  Yes.

48HIS HONOUR:  Thank you.

49MR TEHAN:  Thank you, Your Honour.

50HIS HONOUR:  I'll stand down.

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