Director of Public Prosecutions v Irwin
[2013] VCC 1314
•9 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02066
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY IRWIN |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2013 | |
DATE OF SENTENCE: | 9 September 2013 | |
CASE MAY BE CITED AS: | DPP v Irwin | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1314 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Cordy | |
| For the Accused | Mr F Andrighetto |
HIS HONOUR:
1 Troy David Irwin, you can sit down for the moment. You have pleaded guilty to an indictment charging you with intentionally causing serious injury to Mark Percy on 9 April 2012. You have admitted a number of prior convictions and court appearances, which go back to 1998, although, as was pointed out, the frequency and seriousness of that offending is attributed to the period from about 2004, after you had rehabilitated from the effects of a very serious car accident in 2002.
2 The maximum term of imprisonment for the offence of intentionally causing serious injury is 20 years imprisonment. The prosecution has tendered and relied upon the content of a document headed Prosecution Opening Summary, which is Exhibit C. I am not going to read that out again. It was admitted on your behalf, that it contained an accurate statement of facts, and I incorporate that document into these reasons for sentence. Suffice to say, that on 9 April of 2012, after a long drinking session with some of your friends and acquaintances, ill-feeling developed and as your group of drinking companions left your premises and were waiting for a taxi to collect them, you armed yourself with a 12 gauge shot gun, loaded it, and went out to where the victim, Mr Percy, was standing, took aim and shot him in the side from a range of five to six metres.
3 The prosecution also relied upon photographs which showed the effects of the injury not long after the event, and later after the victim had received treatment. It was pointed out to me during the course of the plea, that you were lucky you are not up on a murder charge, and the victim is lucky that he was not killed by your actions.
4 You made good your escape. You disposed of the weapon. It is not clear whether you permanently disposed of the weapon or not. I am unable, on the facts, to infer that you have retained that weapon for future use, although it is certainly not clear, by any means, that you have disposed of the weapon, as you told the police, in the dump master close to the fish and chip shop, where you went soon after the offence. It is true that you were arrested, apparently returning to your home, and it is to your credit perhaps, at least it is a fact, emerging from the statement to the neighbour, that after the incident, you said words to the effect: "What the fuck have I done?" According to Mr Healy and his report dated 26 July of this year, you continued to berate yourself over your actions.
5 Nevertheless, as the prosecution pointed out, this was an outrageous act of violence. I would say it is an outrageous act of gratuitous violence, because there was absolutely no excuse for that kind of conduct, at all. You have not sought to excuse it on the basis that you were heavily intoxicated. It is not any excuse that you were heavily intoxicated. Maybe it is part of the reason but it is not an excuse. As the prosecution rightly pointed out to me, this was a nasty example of this very serious offence.
6 Of course, it is to be seen in the context of, again, what the prosecution described as an appalling history of offences involving violence and threatening conduct, and you are to be sentenced as a serious violent offender, for this. The law makes it clear that I have to regard the protection of the public as a very significant principle in the sentencing process.
7 The report of Mr Healy, to which I have already referred, was relied upon by your counsel, and is Exhibit 1 on the plea. It is very helpful, in that it sets out a good deal about your background history. You are 34 years of age now, and you did not have the best start to life, to put it mildly. Your father left when you were aged two, so you did not have the benefit of his influence as you were growing up, and you were obviously a bit of a tearaway. At the age of 13, your mother was having difficulty coping with you, and you went to live with your father. It seems you got into heavy drinking very soon after that, and taking other illicit substances including, in particular perhaps, cannabis from a young age, all of which will have made your developing brain, completely addled in your teenage years. It is not surprising you did not do terribly well at school, and no doubt, will have contributed to what Mr Healy has assessed as a low-intelligence quotient, which brings you with the lowest five per cent of the population so far as intelligence is concerned. How you would have been if you had stayed away from alcohol and drugs during that period, we will never know. You had difficulties with ADHD which will obviously have contributed to the difficulties you had at school and in your formative years, and to making life difficult for your mum as you were growing up.
8 You obviously retained affection for your father. The fact that after developing a relationship with a female and having a young son by her, your father then formed a relationship with that young lady will also have been a major blow in your life. So was the death of your older brother. Whatever your perception of your brothers death and the reasons for it, I have no doubt at all that has had a major psychological effect left on you, and will have affected every aspect of your life.
9 Despite that I note from the evidence of your aunt, Jenny Hayes, who gave very frank and impressive evidence about you, that you are capable of holding down a job and working very well. That, despite all of those other matters that preceded your major car accident. It seems that through no fault of your own, you were very seriously injured in that accident and it is not surprising that that too, has been a very major setback in your life. You continue to suffer the physical effects and the emotional effects of that. You are still in pain, and you are still receiving pain management treatment for that injury.
10 It is very easy, I suppose, for people who have not had those setbacks, to think that you could have chosen another way after that, rather than disintegrate, effectively, into a life of drugs and alcohol. It is easy enough to judge when you are in a position of relative normality, but one can see how a person with your background had difficulty in keeping yourself on the straight and narrow. Wisely, you did invest the money or a substantial part of the money you received by way of compensation from the car accident, in a house. You still retain that house. That ought to have been a springboard for you. The fact that you were not able to take that opportunity and the fact that you were given other opportunities through Community Based Orders to have rehabilitation, but failed to take those opportunities and breached the order that you received, albeit some time ago, does not do you any credit. It also leaves the court in the position of struggling to see any optimism for your rehabilitation at this stage. Now, your best hope is to build on the strength that you have in your mother and aunt and other members of your family and their friends, and hopefully, coming through this. But at the moment there just is not enough evidence for me to say that your prospects of rehabilitation are anything other than poor. One can only be hopeful. There is no evidence that you are capable of turning things around. It may be that you can, and I am hopeful that you will find programs during your time in prison that will help you. Much will depend on your ability and you willingness to knuckle down and make use of those opportunities when they are offered to you.
11 It seems that part of the problem also, is that you have been depressed and you have suffered from anxiety symptoms. That too, will have made it much more difficult for you to overcome the difficulties which you have had, and to conquer the substance abuse issues that have dogged your life for the last 10 years or so and longer. I note that you did participate in an alcohol, cannabis and amphetamine rehabilitation program through the Salvation Army. But as I understand it, that was under a Court Order and although it is to your credit that you did that, and you completed the program successfully, it would have been nicer to have seen you build on that, and to have voluntarily maintained contact with those that were helping you through the Salvation Army. Because ultimately you have got to take very drastic action if you are going to knock these substance abuse problems on the head.
12 You do continue to suffer from health problems. Quite apart from the physical problems, there are the emotional problems and depression and anxiety, which will make serving your sentence that much more difficult, and harder than a person who did not have those issues. I am asked to take into account your history, your low intelligence quotient, and your early introduction to drugs and alcohol and your continuing problems with that, as a basis for reducing your moral culpability for this offending conduct.
13 I accept that submission, although I have to say that, in my opinion, it only reduces your moral culpability to a moderate degree. You are still seriously culpable for this offending conduct. You knew what you were doing, even though you were alcohol affected. It takes more than a second or two, or a spontaneous reaction to put together a shotgun, load it, and walk outside and shoot somebody in the side after taking aim. That is a reprehensible act on your part and cannot be excused by all of the factors that, as I say, do reduce your moral culpability somewhat.
14 Clearly, with your record, I have to consider individual deterrence. General deterrence, of course, is a major factor, that is, deterring others from committing offences of this kind. I have to express the denunciation of this court for your offending conduct, and I have to punish you adequately for the offending, and most importantly, I have to impose a sentence that offers the Australian public a measure of protection from you.
15 All that has to be balanced against the need, as far as possible, to promote your rehabilitation. That is a balancing exercise which involves avoiding, if I can, what might seem to be a crushing sentence, and giving you some hope for the future, and for you to build upon the supports you have from your family.
16 You have pleaded guilty to the offences, and it is to your credit, that you indicated an intention at least to plead guilty to recklessly causing serious injury at an early stage. I give you credit for the fact of your plea and your indication, at least to that extent, at an early stage. It has saved the State of Victoria the cost of a trial. It has saved the victim and other witnesses, the trauma and inconvenience of having to come to court, and give evidence. You are to be given credit for promoting the administration of justice, and I propose to do that.
17 The only remorse that I can really see evidence of, arises from you remark almost immediately after the offending conduct, and what you have said to Mr Healy, otherwise it is difficult to see evidence of remorse.
18 It is accepted that there is no alternative, other than an immediate custodial sentence and a quite lengthy sentence at that, to meet all of the sentencing considerations that I have to bear in mind. One thing I have not mentioned is the victims in this. There is obviously the victim who actually suffered the gunshot wound and he, undoubtedly, will suffer significant emotional and psychological effects, probably for the rest of his life. He continues to suffer physical effects from that, not surprisingly, because it was a serious gunshot wound. The other two persons who were very close by and witnessed the event, will no doubt continue to suffer psychological harm as a result of your conduct, and I have to take all of that into account as well.
19 The prosecution put forward a range of sentences that they submitted was appropriate, that being a sentence of between six and 8 years imprisonment, with a period of between four and six years to be served, before being illegible for parole. Your counsel submitted that at least the top end of that range was in the crushing sentence range. I am not sure that I agree with that, in the sense that this was an offence, and your record is such that it would ordinarily merit a sentence at or above even, the top end of that range. But it seems to me, that taking all of the matters into account, that are mentioned in your favour, including the reduction in your moral culpability, I am able to pass a sentence that is below, at least the top end of that range.
20 It was also submitted on your behalf, and accepted by the prosecution, that a lengthy period during which you will be eligible for parole, will assist you getting back on your feet, and enable you to build on whatever courses or treatment options that may be available to you in the prison system, and it seems to me that that is a reasonable position for the prosecution to take and it is one that I think I am able to take.
21 Would you stand now please.
22 Troy David Irwin, for the offence of intentionally causing serious injury, I sentence you to imprisonment for six years and 8 months, and I order that you serve a minimum of four years and six months before being eligible for parole. But for your plea of guilty, I would have sentenced you to a total effective sentence of 8 years and six months imprisonment, with a non parole period of six years and 8 months.
23 I sentence you as a serious violent offender, I make the orders for retention of forensic sample, for forfeiture and for disposal in accordance with the drafts that I have been provided with. I declare that a total of 278 days, not including today, of pre-sentence detention is to be deducted administratively from the sentence you are required to serve, and I order that that fact be noted in the records of the court. Are there any other orders that I need make, gentlemen.
24 MR CORDY: No, Your Honour.
25 HIS HONOUR: Mr Cordy, those orders are signed in triplicate.
26 MR CORDY: Thank you, Your Honour.
27 HIS HONOUR: Thank you.
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