Director of Public Prosecutions v Forrester

[2017] VCC 1200

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 16-01993

DIRECTOR OF PUBLIC PROSECUTIONS

v

RONALD FORRESTER
KYLE EGAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Shepparton
DATE OF HEARING:	24 August 2017
DATE OF SENTENCE:	25 August 2017
CASE MAY BE CITED AS:	DPP v Forrester
MEDIUM NEUTRAL CITATION:	[2017] VCC 1200

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For Accused Forrester	Mr M. Allen	Balmer and Balmer
For Accused Egan	Mr L. Slater	Slater and King

Pages 1 - 15

 

 

HIS HONOUR: 

1On 5 June 2016, you, Kyle Egan, arranged to meet up with your cousin, the victim, so as you could get $50 back that you had loaned him.  Text messages you sent him were aggressive, making it clear to him he better have your money.  You, Kyle Egan, then called Ronald Forrester.  It seems clear that you, Mr Forrester, were not on good terms with the victim because you believed the victim was harassing and threatening your younger brothers.  By contrast, you, Mr Egan, had a good relationship with your cousin, the victim. 

2Sometime around 8.30 in the morning, the victim parked his car outside
102 Vaughn Street, Shepparton.  You, Mr Forrester, were driving your vehicle with Mr Egan in the front passenger seat and three young women in the back.  When I say your vehicle, the vehicle that you were driving.  You, Mr Egan, got out of the car and briefly spoke to the victim and obtained your $50 from him.  You got back into the vehicle and that should have been the end of that.

3Unfortunately for the victim, it was not the end of it.  Far from it.  You,
Mr Forrester, shouted to the victim and told him to stop chasing your brothers around and harassing them.  The victim said, "It's got nothing to do with you but you and me, we've got to sort things out."  The victim started to drive off. 
Again, that should have been where the aggression ended.  However, you,
Mr Forrester, got out of your car, pulled a sawn off 0.22 rifle from your pants, pointed it at the victim's car as he started to turn off Vaughn Street. 
You squeezed the trigger and the rifle discharged a single shot.  It penetrated the rear passenger side window of the car, it went on and hit the victim. 
The projectile penetrated his head, just above his right eye and passed through his nasal cavity before lodging behind his left eye.

4You, Mr Forrester, returned to your car and drove off.  The victim got out of his car, bleeding heavily from his face, and ran to a friend's unit in Vaughn Street.  Police and ambulance arrived.  Ultimately, the victim was transferred to the Goulburn Valley Hospital and later to the Royal Melbourne Hospital for specialist treatment.  I will return back to the injuries sustained by the victim in due course.

5You, Mr Forrester with Mr Egan in the car, drove around various areas of Shepparton.  You, Mr Forrester, asked Mr Egan, "Hide your jacket."  Mr Egan hid the jacket under a log in the bush.  It seems that the rifle was also then hidden as it has never been located.

6You were arrested on 6 June 2016.  In your interview, Mr Forrester, you denied you were driving the car but rather you were the passenger and it was Egan who had shot the victim and that you were being blamed by the victim because of the victim's fear of Egan.  This version was completely false.

7You, Mr Egan, in your interview gave an account which accords with the facts that I have just outlined.  You denied knowing Mr Forrester had a firearm and provided a signed statement attesting to your version of events which has been accepted.  So it is clear, the only information that you hid Forrester's jacket came from your interview.  Without that admission, the prosecution did not have a case against you, it seems to me.  This is an important matter in determining the appropriate sentence for you.

8As mentioned, the victim sustained a single gunshot wound to the head. 
The projectile from the gun passed from the medial right orbit and came to rest in the posterior left orbit.  There was significant haemorrhaging or bleeding of the right eye.  The victim also sustained a fracture of his skull and traumatic subarachnoid haemorrhage.  That is bleeding from the brain, and air within his skull.  He was treated in hospital by neuro surgery, ophthalmology and maxillofacial teams and it was determined that any surgical effort to remove the projectile from behind his eye was too risky to his eyesight and the projectile remains inside the victim's skull.

9He has had some follow up medical treatment and apparently, he has not attended appointments made for him. 

10You, Mr Forrester, have pleaded guilty to one charge of recklessly causing serious injury and one charge of being a prohibited person possessing a firearm.  There is also one summary offence of possession of a cartridge. 
You, Mr Egan, have pleaded guilty to one charge of assisting an offender.

11On any assessment, your offending, Mr Forrester, was very serious violence in the streets of Shepparton.  In assessing the gravity of this offence, what is to be noted is that you one, brought a sawn off rifle with you to the meeting with the victim.  Two, it was loaded and ready to use.  Three, you had got the gun out and shot at the victim's car as it was driving away and when he was presenting no threat to you whatsoever.  Four, your resort to such a dangerous weapon and dangerous conduct of firing the gun when any argument you may have had with the victim was of little moment, reveals an instability in your character and mental state at least at the time.

12Further, the risks that were posed to the victim and indeed other road users and members of the public who may have been on the street at the time by your violence were grave and frightening risks.  What also makes this a serious example of the crime of recklessly causing serious injury is the extent of the injuries sustained by the victim.  What the evidence reveals on the matter is, as I have said, that the victim still has parts of the bullet behind his eye. 

13Further work was done by the Office of Public Prosecutions in recent times and it reveals that the victim, as I have said, has not always attended medical appointments or treatment.  Thus, it is difficult to get an accurate read on his present state.  Save that he still has his eyesight but lives with a bullet behind his eye.  Thus, the level of injury here is not at the extreme end like those cases, where the victim has had life changing or catastrophic injuries.

14What also adds to the gravity of the offending is that you, Mr Forrester, are someone with a concerning criminal history involving possession of firearms and controlled weapons including in the months before this incident.  That is, you have convictions for possession of firearms in the recent months before this. 

15As I have indicated, in my required assessment of the gravity of your offending, it is plain that this is serious offending.  Your counsel conceded as much. 

16As to your moral culpability, in my view, that is relatively high.  What has been noted is that when you were called by Mr Egan to drive him to meet the victim to pick up the $50, you decided then to take a loaded sawn off firearm. 
When the exchange between Mr Egan and the victim had been completed, you decided to raise other ongoing disputes with him.  While it is true that there were words spoken by the victim that things needed to be sorted out between you, he then drove away with no indication that things would be sorted out there and then.  As he was driving away, you decided to point your gun at his car and fire it at the car.

17There were many points within this exchange where you could have decided not to so gravely and significantly elevate the violence but rather have let the victim drive away and you drive away as well.  So while it may be said that there was not a lot of planning involved in the matter, and it is plain and I make it plain that this was not a matter of deliberately setting the victim up for violence, nonetheless your moral culpability remains high by reason of it being obvious to you that there was no reason whatsoever to shoot the victim.

18What has to be noted is that you do have, and I will refer to this in more detail shortly, a concerning history of drug use.  You and others who know you well said that your drug use in the days before was escalating.  That you had not slept for a number of days and that you were not, to quote your partner, who as I say knows you well, you were not yourself.  I take this into account in my assessment of your moral culpability and it does, to a limited degree put forward by your counsel moderate your moral culpability.

19As to you, Mr Egan, I consider the gravity of your assisting an offender to be at the lowest end of the scale.  You did not know or expect Mr Forrester to bring a gun, much less shoot at your cousin, who had just repaid his debt to you. 
You were a passenger when he drove away and later stopped at the Rapids, he asked you to hide the jacket and you did that.  Of course later, you showed the police where it was.  The jacket was never likely to loom in any investigation as to point to the identification of the shooter.  The identity of Mr Forrester as the shooter was well-established from many other facts, all more reliable and certain than the colour of his jacket.

20Thus, your brief impediment to any investigation was of little consequence and, as I have said, was unknown to the police until you revealed it.  You provided a truthful statement in addition to your own record of interview.  On any measure, your moral culpability is low as the gravity of the offending.

21I will continue with matters concerning you, Mr Egan, before returning to matters that concern you, Mr Forrester, personally.

22You, Mr Egan, are still a young man.  Now 24, 23 at the time.  Although still young, you have a concerning history of offending which has seen many sentences imposed by a magistrate and the Children's Court before that. 
Your offending in the past has to be seen in light of your difficult and deprived circumstances as you grew up.  You are the son of a Wembawemba man and a Yorta Yorta woman.  You are an Aboriginal man.  I take that into account as appropriate.

23Your father struggled with epilepsy especially as he was not good at taking medication.  Rather, he was a heavy drinker.  The reports of your childhood speak of conflict with and fear of your father as you grew up.  You reported no happy memories of childhood, but rather it was a time full of explosions of domestic violence within your immediate family and your extended family. 
The reports prepared for your earlier Children's Court hearings speak of significant dysfunction in your family life.  You had eight siblings.  Many of the six boys have had significant trouble with the law and have been incarcerated from time to time.  You, sadly, lost an older sister to suicide when you were a child.  Your parents separated and reconnected many times.  You and a brother spent time with your father in Kerang.  Your family lived and moved between Robinvale, Swan Hill, Kerang, Bendigo and Shepparton.  At one point, you lived with the victim in this matter.  Your mother now lives in Kerang.

24You attended a number of schools in Robinvale and Bendigo.  You did well at sport.  However, your attendance at school was poor as you moved transiently from your mother to father and to other members of your family.  You did not go beyond Year 9.  Thus, you do not have the benefit of much education at all.  You have worked in fruit picking and have some qualifications or tickets to work in construction, but you have not been able to settle to any steady job.  You had early assessments done as to your level of intelligence, which put you in the category of having a mild to moderate intellectual disability.  Retesting of late indicates a low intellect but not at a level of intellectual disability.

25From an early age, that is from your early teens, you have used or turned to drugs, first cannabis and then ice.  A familiar destructive pathway seen all too regularly in these course.  You have in the past been a heavy drinker, but you have in recent times, to your credit, dealt with or are dealing with that problem.  You have had efforts at dealing with your drug problem and it seems that is at the moment a work in progress.  So while much of your past is unfortunate and dysfunctional, you have taken steps of late to improve things.

26You and your long term partner have relocated to Bendigo where family influences and other connections are more positive.  The impact of the shooting of your cousin has had a big impact on you.  There is no doubt you are profoundly remorseful and have given that emotion practical effect by caring for your cousin, the victim, when you could.  These matters are very much to your credit. 

27Taking into account your plea of guilty, your significant co-operation with the authorities, your genuine remorse, the low-level of gravity of your offending, your poor upbringing and importantly, the positive changes you have set in train of late, I am of the view that the just and appropriate sentence is one where I adjourn this matter for a period of 18 months on condition you be of good behaviour and that you apply to and be assessed by the Ballarat and District Aboriginal Co-operative, that is the Baarlinjaan Medical Clinic.

28In my view, a proportionate sentence does not require you to be punished by a community corrections order.  Your rehabilitation is best facilitated by you voluntarily working with those you are working with now.  Directed all towards improving your self-esteem, affirming for you your capacity to work in areas of indigenous culture and thereby contribute to your community and continue to contribute as a partner, father and member of your community.  I will formally announce the sentence shortly, but it will be in those terms.

29As to your personal circumstances, Mr Forrester, they too have a sad familiarity of family dysfunction, drug use, criminality and one period of previous incarceration.  However, as I will turn to, there are positive signs of late of you seeking out help and vocational training that will hopefully will allow you to settle after release from the gaol term I must impose.

30You are 25, 24 at the time of this offending.  Your chronological age means you are still young with so much of your life ahead of you.  You are, on all the materials that I have seen, immature or you have been slow to mature and I factor that in, in the practical terms in my assessment of you and what the future holds for you.

31You are an Aboriginal man, the eldest of six children.  You have, as was evident, during these proceedings much support from your family and your extended family and I again see much support for you here in court.  Your parents separated when you were six.  Your parents' lives were bedevilled by severe alcohol and drug abuse.  Violence broke out regularly.  After your parents separated, you moved with your mother to Melbourne and then to Gippsland, but the same problems and dysfunction that you had witnessed and experienced continued with violent, alcoholic, drug using males coming in and out of your family life.

32Your mother and the children, including you, returned to Shepparton and to your father but nothing much improved.  When you were 13, your mother moved to Sydney, I was told, and perhaps onto Queensland and you moved from time to time up there and back.  However, you have in truth had little to do with your mother since your early teenage years.

33From 13 to 17, you lived with your father in Shepparton, but much of the same circumstances that I have described continued.  In truth, you had, while you were far too young, many responsibilities to help your own siblings grow up.  You did not have a settled, stable, nurturing family life as most people understand that concept.  That is not your fault.  Nor, in truth, probably the fault of your parents.  It is symptomatic of what the High Court and other courts have come to understand and express about the lives of some indigenous people.

34What was said in one of the relevant cases referred to by your counsel,

"The effects of social disadvantage do not diminish with the passage of time and are likely to have profound and lasting consequences.  The common experience of the law is that very frequently, such disadvantages precede the commission of crime often explain and contributes to an offender's criminal behaviour."

35Although you, as I said, were very young, at 17, you and your partner who was even younger, at 15, formed an important and long lasting relationship. 
That is, with Mariah Ritchie, who continues to support you.  You have two daughters and, as I see it, you do all you can to be a solid parent to them, something you did not have the benefit of yourself.  Your partner wrote a letter indicating her support and that sensibly, she and you will take things slowly upon your release, so as to be sure that you are back on your feet when you resume relationships with her.  You would be wise to follow her advice. 

36Likewise, your friend, Ms Rhonda Gale, experienced in dealing with social dysfunction in the Shepparton region, she recognises your commitment to your children.  Also, she sees you need to overcome past memories in order for you to settle on your release.  She knows you and she knows that you will need significant help on release if you are to make things better for yourself and your family.

37There is support for you from your close friend, Mr Jai Jagadah O'Donnell and his partner, Maree McGhee, who also wrote letters that I read.  These all should give you confidence not to return to drugs and criminal ways on your release.  Your grandmother's letter is also very important.  She supports you.  You should not let her down in the future.

38I have spoken about things in the future, I now return to some matters in the past.  I have taken into account your very interrupted education.  You turned to cannabis use at about age 16 years.  This escalating to heavy use of amphetamines and ice by age 17 and thereafter you were, it seems, a daily user of those damaging drugs.  From about 22, you also added in use of GHB, ecstasy and cocaine.  You abused prescription medications and drank too much alcohol.  As I said, at the time leading up to this offending, you were in a very poor state with drug use that saw you not sleeping for day upon day.

39Your self-destructive and addictive behaviours saw you with a lifestyle that almost inevitably had you before the courts.  The use of drugs was, in the opinion of Ms Lechner, the psychologist who saw you, "a means of blocking out internal distress."  In this regard, I note without publicly announcing all the distressing factors that are set out in the last line of Ms Lechner's report, that is the last line of p.1 of her report and in the same vein, I note and have regard to the matters set out in Paragraph 11 of Mr Allen, your barrister's comprehensive written plea.

40So Mr Forrester, yours was a very dysfunctional upbringing.  You had a heavy burden as I have said, with as a child yourself looking after your siblings. 

You were often transient, between one parent and another, exposed to violence, substance abuse and a sense of hopelessness.  As I have said, all that was said by the High Court in Bugmy is relevant and I apply it here in your case.

41In terms of your past criminal record, what stands out is your criminal history commenced with offences involving violence and that has continued to now.  Likewise is all to frequent firearms and weapons offences.  You have had a suspended sentence and a community corrections order.  The latter of which you breached.  On 5 February 2016, you were given an aggregate sentence of imprisonment for three months.  One offence in the array of offences being an offence of being a prohibited person in possession of a firearm.

42Other earlier firearms offences saw you receive a community corrections order which, as I have said, you breached.  So on 5 February 2016, in addition to the gaol term for the offence of being a prohibited person in possession of a firearm, your community corrections order was again reimposed to commence upon your release.  You were released from prison in March 2016.  Despite the prison term for firearm offences and for being on a community corrections order for firearms and other offences you, within three months or just less, got yourself a firearm which was a sawn off firearm and used it in the main street of Shepparton at 8.30 in the morning.  Thus, the weight to be given to deterrence to you and protection of the community must be significant.

43What you have done while on remand is very much to your credit.  The array of courses and certificates that were tendered in this matter is as numerous as I have seen from a prisoner.  It gives me some confidence that you are genuine in wanting to permanently reform.  Your own letter to me says this explicitly.  You expressed in your letter deep shame and remorse for what you did. 
What you said was this, "I want you, Your Honour, to know that as well as remorse, I feel I have a new found determination to turn things around once and for all."  What you wrote was, "Over the time that I have been on remand, I have been actively addressing the core issues around why I use drugs as well as the battles I have had socially with things like cultural acceptance, social anxieties and my offending behaviour.  It has been really good to participate in courses, regaining a healthy routine and reconnect with my cultural roots.  The MRC has a well put together indigenous arts and social gathering program, which has allowed me to work on my identity as well as an indigenous member of the community as well as rebuild self-esteem that had long been damaged since my childhood."  These are important words, Mr Forrester.

44I take into account all these matters and as indicated, are not only explained to me how you got to the low point that you did, but also how you want the future to be completely different.  I have little by which I can facilitate your rehabilitation, save for a time on potential parole.  As with your partner and
Ms Gale, I think you will need a good deal of help and support on parole for some time to settle when you are released.  Whether you are allowed parole and when you are allowed parole is a matter for others, not me.

45You are currently medicated on antidepressants.  Ms Lechner, looking back on things, said you probably suffered from ADHD or had symptoms like that.  Despite all the efforts that you have made in prison, I do take into account that prison will be harder for you because of your mental health problems.  You have been on remand for too long and the conditions that you had been on remand were much harder because of systemic problems in the system.  I take into account the difficulties you face because the courts are not able to do Shepparton cases as speedily at the moment as might be the case.  Thus, the delay in which you have continued to use the time well mitigates in this matter. 

46Your early plea of guilty means that I will impose a lesser sentence for all the reasons that attach to a plea of guilty.  That is, it is an expression of remorse.  You did relieve witnesses and the system of a trial.

47What remains is the need to make clear that I have balanced all the matters that were put by your counsel in his comprehensive written and oral plea for you and all the matters that reveal the seriousness of the crimes committed by you with your criminal history and other problems.  I must express denunciation of your violent and dangerous conduct involving a sawn off firearm used in the streets of Shepparton.  The denunciation must not be just the words I use.  There has to be a practical impact of a stern sentence of imprisonment.

48I must send a clear message of deterrence to others who may resort to violence and firearms when faced with any, let alone minor, arguments with others.  Firearms must be kept off the streets and my sentence must send that message.  I must also endeavour to deter you.  I have not overlooked, as I hope I have made clear, your rehabilitation, especially in light of your young age and the changes that you have embarked upon while in gaol.

49In the end, such a balancing exercise does result in a significant term of imprisonment, but in my view, grave as it always is to send a young man to gaol for a significant period of time, no other sentence is appropriate or proportionate to the seriousness of the crimes that you committed.  I will order some cumulation for the firearms offence, but I have been ever mindful not to doubly punish you within the first charge for the second charge.

50For committing the crime of recklessly causing serious injury, you are sentenced to five years and six months' imprisonment.  For committing the offence of being a prohibited person in possession of a firearm, you are sentenced to 15 months' imprisonment.  I order that six months of the sentence that I have imposed on Charge 2 be cumulative upon the sentence that I have imposed on Charge 1.  That gives a total effective sentence of six years and I order that you serve a minimum of three years and nine months before being eligible for parole.  For the summary offence of possession of the cartridge, you are convicted and fined $100.

51Had you pleaded not guilty of the offence and been found guilty of it, I would have imposed a penalty of eight years with a minimum of six years.

52As I understand it, you have served so far on remand a period of 445 days.  That period of time having been reckoned, I will declare that that period of 445 days as part of the sentence that I have just imposed and I will enter that declaration on the records of the court so the prison authorities are left in no doubt that you have already served 445 days of the sentence I have just imposed.

53Mr Egan, for committing the crime of assisting an offender, you are convicted and I adjourn the matter for 18 months with the following conditions.  That you be of good behaviour and that you apply for and undertake programs with the Baarlinjaan Medical Clinic as part of the Ballarat and District Aboriginal
Co-operative.  Do you understand that?

54OFFENDER EGAN:  Yes, sir.

55HIS HONOUR:  It will be made clear to you that you have to sign a document, that is the undertaking, the promise to me that you will be of good behaviour and get things on the straight and narrow.  If you fail, commit more crime or do not do what you are supposed to do with the program, you will have to come back before me and it will be a different story, do you understand that?

56OFFENDER EGAN:  Yes, sir.

57HIS HONOUR:  All right.  A document will be produced and will be provided to you.  I understand that there are some other orders that are sought, are they forfeiture or disposal or something?

58MS BURNETT:  Your Honour, there are two forfeiture orders and there is one disposal order.

59HIS HONOUR:  All right.

60MS BURNETT:  In respect of one of the forfeiture orders ‑ ‑ ‑

61HIS HONOUR:  You will send them in due course, will you?

62MS BURNETT:  Yes, that's right.

63HIS HONOUR:  All right.  There will be an application for two forfeiture, one disposal order.  They are getting tidied up.  I will sign those orders later without requiring people to wait around for that.  So they will be forwarded to your lawyers in due course.

64That brings, as I see it, an end to the matter.  Is there anything further required?

65MS BURNETT:  No.  Thank you, Your Honour.

66HIS HONOUR:  Thank you.  Mr Forrester, as I have explained, it is necessary for you to head out of the court while I remain on the Bench here so that things move smoothly enough.  So if you just go with the authorities.  Those that know you well will be able to contact you in the prison as they have up until now.

(Prisoner FORRESTER removed.)

67Mr Egan, there is a document here and if you come here to behind Mr Slater, you will sign that document. 

68So as I explained to you, the conditions are you must be of good behaviour for the next 18 months and you have got to apply to and participate in programs run by Baarlinjaan Medical Clinic, Ballarat and District Aboriginal Co-operative, all right.  You will get a copy of that and that brings the matter to an end, do you understand?  I do not want to see you again.  I will just get a copy of that.

69If there being nothing further, I thank you, Ms Burnett for your assistance on this short circuit.

70MS BURNETT:  Thank you, Your Honour.

71HIS HONOUR:  I thank counsel, Mr Allen in Melbourne and Mr Slater,
Mr Fitzpatrick and yourself for your assistance here and in other matters in the circuit.

72MR SLATER:  Thank you, Your Honour.

73HIS HONOUR:  If there is nothing further, I will adjourn.

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