Director of Public Prosecutions v Holloway
[2015] VCC 1403
•23 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG (SITTING AT MELBOURNE)
CRIMINAL DIVISION
Case No. CR-15-00658 & AP-15-0806
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW SCOTT HOLLOWAY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong (sitting at Melbourne) | |
DATE OF HEARING: | 18 August 2015 & 5 October 2015 | |
DATE OF SENTENCE: | 23 October 2015 | |
CASE MAY BE CITED AS: | DPP v Holloway | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1403 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Swadesir | Ms Vaille Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr T Strong | Melasecca, Kelly & Zayler |
HER HONOUR:
1 Andrew Scott Holloway, you have pleaded guilty before me to two charges of reckless conduct endangering life relating to events that occurred in Geelong on 11 November 2014.
2 The offence of reckless conduct endangering life is very serious and that is reflected in the maximum penalty prescribed, namely; a Level 5 imprisonment offence, and the maximum is 10 years’ imprisonment (s22 Crimes Act 1958).
3 You have also admitted your criminal record that spans the period from 24 September 2004 until 18 October 2012. There are relevant prior convictions for violence.
4 You have a number of prior convictions recorded in both Queensland and Victoria. They are for possession and use of drugs, possess weapons and wilful damage (2004), breach of bail conditions (2005); causing grievous bodily harm, breach of probation, possess drugs, possess a pipe, possess articles for use in the commission of crime (2005); fail to appear, possess property suspected of having been used in connection with the commission of a drug offence, possess tainted property and breach of probation (2007); make threat to kill and use a carriage service to menace (2010); trafficking methylamphetamine (2012),
5 In the past courts have extended some leniency towards you ,and you have had a variety of dispositions imposed including without conviction fines, probation, wholly suspended jail terms and jail.
6 I have previously dealt with the two co-accused, Kain Smiljanic and Cory Jennings. These sentencing remarks should be read in conjunction with my sentencing remarks in relation to the sentences that were imposed on 24 June 2015 with respect to Smiljanic and Jennings.
7 On 24 June 2015, Kain Smiljanic was sentenced to a total effective sentence of four years and three months’ imprisonment to serve a non-parole period of two years and five months. Cory Jennings was sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of 18 months.
8 It is accepted that Mr Smiljanic is the principal offender and he faced an additional charge of reckless conduct endangering life and a further charge of possession of a firearm whilst being prohibited. In addition, he pleaded guilty to a summary charge of committing an indictable offence, namely, reckless conduct endangering life, whilst on bail. He admitted his criminal record. He had a prior court appearance on 18 March 2014 at the Geelong Magistrates’ Court and on that day following a consolidation of charges, including making threat to kill, possess an unregistered general category handgun, burglary, theft, fail to answer bail, theft of a motor vehicle, contravening a Family Violence Order and criminal damage, he was dealt with and placed on a Community Correction Order for 12 months with various conditions.
9 Mr Jennings pleaded guilty to two charges of reckless conduct endangering life and did not have any prior criminal history.
10 The Crown case against both you and Jennings is that you aided and abetted Smiljanic in respect to the second and third charges of reckless conduct endangering life on his indictment.
11 I shall now proceed to sentence you on the basis of the amended Crown opening. There was no objection taken by your counsel, Mr Strong, to that opening at the plea hearing.
12 I do not propose to repeat in full all the details of the incident as they are set out in full in the amended Crown opening and in my previous sentencing remarks.
13 Briefly, the incident the subject of the charges took place over a 10 minute period. At approximately 3pm on November 11, 2014 you, in company with Smiljanic and Jennings, had an altercation with Rhys Humm (who I will refer to as “Humm”) at the Coles Express Shell Service Station Melbourne Road, North Geelong. CCTV footage has been viewed by the court and that shows how the events unfolded.
14 You were the driver of a white BMW and Smiljanic and Jennings were passengers in that vehicle.
15 You pulled into the service station behind a tray truck driven by Humm. Humm had purchased some fuel and when he returned to his truck, having paid for the fuel, a confrontation took place.
16 Humm was not known to you. Apparently there was an issue between he and Jennings relating to allegations about Humm telling the police certain information.
17 You confronted Humm by pushing him and then he backed away and moved towards the front of his truck. You and Jennings followed him. Jennings was then seen to be holding up a butane burner, threatening Humm. You snatched the burner from Jennings and confronted Humm.
18 After that, Smiljanic exited from the service station store, reached into the BMW and retrieved a bolt-action sawn-off shotgun, walked to the front of Humm’s truck, pointed the rifle and pulled the trigger. Fortunately, the bullet missed Humm.
19 Humm then ran off towards the entrance to the nearby Repco store and you then returned to the BMW with the co-accused and drove in Humm’s direction. Humm left the Repco store and ran back in the direction of his truck. You accelerated the BMW in his direction.
20 Smiljanic then exited the BMW, walked under the sign of the Repco store, went forward, raised his right arm and fired a shot towards Humm as he was leaving the service station.
21 Those circumstances, that is the second shot, constitute Charge 1, reckless conduct endangering life in relation to your Indictment.
22 Smiljanic then returned to the BMW and you reversed it, performed a U-turn, and drove along the carpark parallel with Melbourne Road. The BMW came to a halt near the Godfreys store behind a white Ford station wagon and in line with Humm’s vehicle.
23 Smiljanic then exited the vehicle again, he walked around the rear of the BMW and started towards where Humm’s vehicle was stopped in traffic. Humm attempted to move right into the next lane and collided with a truck in front of him and then Smiljanic fired the third shot at Humm.
24 Those are the circumstances that constitute Charge 2, reckless conduct endangering life, in respect to your indictment. That shot penetrated the left sliding door window of a van driven by Cain Mahoney who was travelling on Melbourne Road at that time. A bullet impact was also discovered on the side of the Ford Motor Company on the other side of Melbourne Road.
25 As was stated in the earlier sentencing remarks, during this incident there were a number of people, including customers and staff, present in the Coles Express Service Station and the nearby Repco and Godfreys stores, all of whom heard the gunshots or witnessed the scene unfolding. It must have been terrifying for all concerned.
26 Mahoney was extremely shaken by this incident.
27 Humm was not injured as a result of these events and made it clear to police that he did not wish to assist them with their investigations.
28 Mr Holloway, it is only by good fortune that no one suffered any injury as a consequence of the firearm being discharged during these events. The conduct was extremely reckless and the potential for serious injury and even loss of life was very real.
29 There is a further aggravating feature to your offending in that you committed these offences whilst you were on bail. Earlier that morning on 11 November 2014 both you and Smiljanic were arrested for unrelated matters. You were subsequently released on bail at 10.26 am on the day these offences occurred, that is less than five hours before the events. There is no charge in relation to the commission of the further offending whilst on bail, but offending whilst on bail is still nonetheless a factor that I must take into account when sentencing you because it reflected poorly on you and showed your ongoing disobedience to the law at that time.
30 You are to be sentenced on the basis that you aided and abetted Smiljanic through your presence and in the knowledge that he was armed and had fired one shot and would fire again.
31 This offending demonstrated a complete lack of respect for the law and the safety of the members of the public who were present and who were exposed to your reckless conduct. You did not know Humm, nor does there appear to be any motivation for why you participated in this offending.
32 In sentencing you, there is a real need for the court to emphasise general and specific deterrence and denunciation. On behalf of the community the court needs to strongly condemn your behaviour. I consider that it is deserving of significant punishment to deter both you and others from acting in a like manner in the future. Conduct of this sort cannot be tolerated.
33 At the outset your counsel Mr Strong acknowledged on your behalf that this was very serious offending and a very bad example of this type of offending. He did not seek to excuse your behaviour. He said that you made appalling decisions. At the time, you were a heavy drug user, using both ice and Xanax and he described your drug habit as being very significant and that you were using up to half a gram of ice per day.
34 I accept that your heavy drug use does provide some explanation and context for your behaviour, but it in no way excuses your behaviour.
35 Mr Strong explained that earlier that day you had an argument with your partner and Smiljanic and Jennings had arrived at your house driving a BMW belonging to Jennings’ uncle. You offered to assist Jennings by driving because he had suffered some injury to his hand that was interfering with his driving ability. You drove to the petrol station to purchase some petrol. You did not know Humm and whatever dispute there was between he and Jennings.
36 You admit that it was insane for you to become involved to the extent that you did. From the CCTV footage it can be seen that you participated actively in this incident and made a series of very poor decisions. I accept that your role was opportunistic, but nonetheless it was deliberate on your part. I accept that through your plea of guilty that you now acknowledge the seriousness of offending.
37 Mr Strong suggested that you had no knowledge of the gun being used by Smiljanic and that you were sent into a panic when the first shot was fired. Your error was continuing to be involved, threatening Humm and continuing to drive the BMW.
38 It is apparent from a viewing of the CCTV footage that you did play an active role in these events as they unfolded, threatening Humm with the butane gas burner, chasing after him and pursuing him in the BMW. You did not try to extricate yourself from this incident as it unfolded.
39 I consider that you were fully aware that what you were doing was wrong and therefore I consider your moral culpability to be high.
40 To your credit you did voluntarily hand yourself in to police and you were remanded in custody for the period from 14 November 2014 to 12 March 2015 – a period of some 119 days.
41 I turn now to matters personal to you.
42 You are currently aged 29 and you were born on 3 June 1986.
43 You have an older half-brother and an older half-sister. Your older half-brother has spina bifida and lives in a special facility. Your half-sister, Lisa Kelly lives in Geelong, and has a close relationship with you and is very supportive.
44 Some years before these events your mother, Kathryn, was diagnosed with terminal cancer and has limited life expectancy. When you were released on bail you lived with her and provided her with care and support. She gave evidence at the earlier plea hearing that confirmed your assistance.
45 Unfortunately following the media coverage after the plea hearing, an untoward consequence was that you and your mother were filmed leaving the courthouse, that was shown on television, and as a consequence of that your mother felt humiliated and ostracised within her community. In her frail physical and mental state she was not able to deal with that publicity and one consequence was that she broke her lease and moved from the rental premises where she was living near Colac where you had been living as part of your bail conditions. Your relationship had been adversely affected and you could no longer live with her and eventually orders were made varying the bail conditions so that you could live with your sister, Lisa. Fortunately your relationship with your mother has now improved and your mother Kathryn was present today at the plea hearing.
46 You remain concerned about your mother’s grave condition and it will be something that will continue to play on your mind for some time.
47 You have had a relationship with Deanna Magliano with whom you have had that relationship for about three years. She lives independently of you. She has other children of her own but they currently reside with their father and she is in the early stages of pregnancy.
48 She was involved in a serious hit-and-run accident whilst riding her bike and as a consequence she suffered facial injuries and an acquired brain injury. You have provided assistance and support with her over the time you have been on bail. Both she and her parents were present at the plea hearing and are very positive about you and supportive of you and both their references that I have read attest to the real efforts that you have made whilst you have been on bail to address the factors that led to your offending.
49 You have little formal education, you left school at age 15 and started and did not complete a roof plumbing apprenticeship. In the past you have had some employment working in retail sales for about three years and also working as a roof plumber.
50 Alcohol and drug abuse have been chronic issues for you over many years. You started using ice at age 16. Sadly, you were introduced to that drug by your biological father with whom you lived as a teenager and since that time you have had ongoing problems with your addiction since. Your past criminal history is to an extent related to your drug issues.
51 I have had regard to your strong commitment to change following your release from custody on strict bail conditions. You have taken real steps to rehabilitate yourself and to address your underlying offending behaviours. You have been drug-free.
52 I accept that you have:
(i) been attending weekly counselling with Pastor Andrew Cox at the Christian Family Church;
(ii) complied with a regime of opioid replacement therapy since your release from custody;
(iii) sought treatment from Dr Ian Skovel, general practitioner, in respect to difficulties that you have had and he has been prescribing medication for sleeping and a mood stabiliser;
(iv) attended an employment agency, Matchworks, though which organisation you have seen an alcohol and drug counsellor, Tania Halloway, concerning drug use and relapse prevention;
(v) tested negative in the urine tests that have been taken;
(vi) undertaken some charity work for Colac Comeback Country, a country music band, on a voluntary basis.
53 I accept the evidence given by both your mother Kathryn and your sister Lisa who confirm that you have remained drug-free since your release. Lisa Kelly confirms that you have been recently living with her and whilst doing so you have been helping others and living a more pro-social life.
54 Overall I accept that you have significantly changed both your attitude and your behaviour and that is exceptional given the background and history that I have just elaborated upon.
55 I note you were assessed by Mr David Ball, psychologist, and his report of 11 August 2014 has been read by me. He confirms that you satisfy the DSM-V diagnostic criteria for severe stimulant use disorder in early remission.
56 He recommends referral to a private psychologist to assist you further with your rehabilitation.
57 He said that you found your recent time in custody on remand sobering and salutary. He noted you were placed in protection after being severely beaten by a number of other inmates and medical records provided during the plea confirm this, that is, that you were assaulted on 27 September 2014. You suffered a small stab wound in the back and fractured nasal passage. You were held in protective custody following that assault until your release.
58 Your experience in prison has prompted you to drastically re-evaluate the direction of your life and the need to avoid associating with negative peers.
59 Mr Strong emphasised a number of matters in mitigation, all of which I accept:
(i) Your plea of guilty entered at the earliest opportunity following a directions hearing. The Crown accepts that the plea has been entered at the earliest stage. There is real utility in your plea. You have saved the State the expense and inconvenience of a trial and the witnesses have been spared the trauma of having to come to court to give evidence. You have thereby facilitated justice. I accept that the plea of guilty is evidence of genuine remorse and your sentence will be discounted accordingly.
(ii) I also accept that your conduct during the post-release period whilst on bail is indicative of somebody who really has taken stock and is taking steps to address the underlying reasons for offending. You have remained drug-free for the first time in many years and you have been compliant with the opiate substitute medication.
(iii) Your prospects for rehabilitation are excellent having regard to the various steps you have taken without any support from the correctional authorities and whilst living in the community on strict bail conditions.
(iv) I have noted the very strong support from your mother, sister, and your partner and her family. You have extricated yourself from your negative peer group and that you have stabilised your life.
60 Mr Strong submitted initially that the principles of family hardship applied because you were caring for your gravely ill mother and your partner. Given the change in the circumstances whereby you are no longer living with your mother I confirm, as was stated during the last plea hearing, that I do not consider that family hardship as is considered in the law has been proved.[1]
[1]See Markovic v The Queen; Pantelic v The Queen[201] VSCA 105
61 I have taken into account, however, in a general sense, the anxiety and distress a further jail term will cause you, knowing that you cannot provide active support to both your mother during her terminal illness and your partner during her pregnancy.
62 In all the circumstances, Mr Strong submitted that a sentence of time served followed by a lengthy Community Correction Order with a component of community service work would be the appropriate disposition. He highlighted the guideline judgment of Boulton and submitted that even in cases where imprisonment was warranted, that the court had this option available to it.
63 Ms Swadesir, on behalf of the prosecution, highlighted the aggravating features of the offending, namely, that you offended whilst on bail, you effectively commenced the altercation with Humm at the petrol station, and thereafter drove the vehicle which allowed Smiljanic to continue to fire the gun towards him. She also highlighted the location of the offending, namely it being a public place where many people were present at risk of being injured. She accepted the early plea of guilty entitled you to a sentencing discount and that it also is demonstrative of remorse. She submitted having regard to your prior criminal history that there is a real need to emphasise deterrence and protection of the community and to denunciate your conduct and therefore the court should consider an immediate custodial sentence.
64 In sentencing you I have had regard to the principles of parity. I consider that both you and Jennings played an equal role. Jennings did not have any prior criminal history. You do have a prior criminal history. You are not to be punished for your past offending but it is nonetheless a matter of some significance that I am required to consider.
65 You also committed the offending shortly following your release on bail in clear breach of your bail conditions.
66 Given my earlier comments, however, I am mindful of the very real progress that you have made since being released on bail on strict conditions and I have taken that into account. I have also taken into account in a general sense that it is likely that on your return to custody that you will be kept in a protection situation, although it is not possible to say what precisely those conditions are, but I have taken that into account in the general sense that it is going to be more onerous for you than otherwise, and I have had regard to the material that has been filed on behalf of the Crown, namely the affidavit of Brendan Francis Money sworn 22 October 2015.
67 Overall, having regard to the very serious nature of the offending, your past antecedents, including the fact you committed this offending whilst on bail, I do consider that a further gaol term is indicated. I do acknowledge following the guideline judgment of Boulton that courts can, even in cases of relatively seriously offending, which might have previously attracted a medium term of imprisonment, they can order that a CCO might be appropriate, however there still remains that class of cases where having regard to the seriousness of the offending a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which is just in all the circumstances.
68 Every case has to be dealt with on its own facts, including the circumstances of the offending and the offender and the circumstances of aggravation and mitigation .
69 In my opinion this is a case where a CCO standing alone, even to follow the time already served, would have been inadequate to satisfy the need to punish and denounce your conduct and to provide a measure of general deterrence, and I have outlined the several serious features of your offending that have led to this conclusion in my remarks.
70 So not withstanding my very real respect for the strides that you have taken whilst you have been out on strict bail conditions I still will impose a gaol term to be served.
71 I will ask that you stand now please, Mr Holloway.
72 In respect to the two charges on the indictment - Charges 1 and 2 - I impose an aggregate sentence of three years' imprisonment and I fix a non- parole period of eighteen months.
73 I make the Forfeiture Order sought.
74 I make the declaration of pre-sentence detention of 119 days and direct that that be entered into the records of the Court.
75 In respect to s6AAA of the Sentencing Act (1991) I say that but for your plea of guilty I would have imposed a sentence of five years’ imprisonment to serve three years.
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