Director of Public Prosecutions v Kobert

[2017] VCC 1571

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16- 02286

DIRECTOR OF PUBLIC PROSECUTIONS

v

MANFRED KOBERT

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	6 October 2017
DATE OF SENTENCE:	24 October 2017
CASE MAY BE CITED AS:	DPP v Kobert
MEDIUM NEUTRAL CITATION:	[2017] VCC 1571

REASONS FOR SENTENCE
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Subject: Criminal law - sentence       

Catchwords: Jury trial – guilty of one charge of recklessly causing serious injury and one charge of possessing an unregistered general category handgun – victim seriously injured with abdominal gunshot wound causing lacerations to liver and kidney – good physical recovery – offender single man aged 77- non-citizen subject to deportation to Germany – historic prior convictions for murder and manslaughter involving use of gun – no recent offending – guarded prospects for rehabilitation.    

Cases Cited:Saracevic v R [2017] VSCA 212

Sentence: TES 5 years and 6 months, with a non-parole period of 3 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. P. Fisher	Office of Public Prosecutions
For the Accused	Ms. E. Clark	Balmer & Associates

HER HONOUR: 

1Manfred Kobert, you have been found guilty by a jury of recklessly causing serious injury to Matthew Lovitt, and possessing an unregistered general category handgun.  You were acquitted of intentionally causing serious injury to Mr Lovitt and of assaulting Amanda Swanson. 

2It is necessary to set out to some extent the evidence before the jury as to how Mr Lovitt came to be injured.  Mr Lovitt declined to make a statement and the prosecution case relied on the evidence of Ms Swanson as to what occurred, and as to other circumstances surrounding the offending.

3Briefly, her evidence was that in 2016, she was living in your house as a guest in effect, and on 30 May in the evening, she was in the house with her boyfriend Matthew Lovitt.  She said there was no particular animosity towards Mr Lovitt on your part, but you had told him that you did not want anyone hitting her or taking her money and there was evidence that Lovitt had recently borrowed some money from her.

4Ms Swanson said you had returned home that evening intoxicated.  She heard you coming in the side gate and she let you in the back door, and you were carrying a tomahawk in one hand and a gun in the other.  She said the gun did not belong to her and that she had seen it once before, when a couple of weeks previously you had waved it around in the garden. 

5She said you came into the lounge room yelling, "Where's Matt?"  Mr Lovitt came into the room and you shot him, the bullet hitting him in the abdomen and seriously injuring him.

6She said you then went outside and you were gone about ten minutes.  She had thought you had run away but you then returned to the room with the gun and Ms Swanson said she tried to get the gun from you. 

7She said she wrestled with you during which time you hit her in the face but she thought this was unintentional.  This may well have resulted in the jury returning a verdict of not guilty in relation to Charge 3, rather on the basis that they did not accept her evidence.  It would appear that the jury scrutinised her evidence carefully and accepted a considerable part of it. 

8Ms Swanson said during the wrestling you both had your hands on the gun and it went off.  It was fired and the bullet ended up lodged in the wall having clipped the nearby table and blinds.  She had taken the gun into her bedroom and later when the police arrived, she had thrown it out of the window onto the lawn where it remained until police collected it later. 

9At some earlier point, she had taken the tomahawk from you and had thrown it under the bed in her bedroom where it was later found.  She said in her evidence that she realised later that you had gone outside to reload the gun.  She had stayed in the house to help Mr Lovitt who was, by then, lying on her bed, badly injured. 

10This version of events accounts for the two fired bullets that were retrieved, one in the body of Mr Lovitt and the other in the wall.  However, the jury acquitted you of the charge of intentionally causing serious injury and convicted you of the alternative charge of recklessly causing serious injury. 

11It is therefore necessary to consider the version of events relied upon by you, insofar as it explains a shot fired during the struggle as being the one that hit Mr Lovitt.  If this was the scenario accepted by the jury, they may or may not have accepted that you fired the shot not intending to hit Mr Lovitt, or they may have decided that the gun was fired in the course of the struggle regardless of whose finger was actually on the trigger. 

12Your version of events, denied by Ms Swanson, was that when you arrived home and entered the house carrying a tomahawk, you were attacked by Ms Swanson, that you saw a gun on the couch which was not yours and you had never seen it before. 

13You say that you and Ms Swanson then wrestled over the gun.  Mr Lovitt came into the room to see what the yelling was about and the gun went off and hit Mr Lovitt, while both of you were handling it.

14On the face of it, that version of events does not explain the fact that another bullet was found lodged in the wall, but the presence of a second bullet was not put to you during the record of interview so no explanation was proffered or needed to be proffered as part of the defence case.

15Your version of events has it that you were injured during the struggle with a cut to your head and that after the struggle Ms Swanson went outside to reload the gun.  With some of your blood on her hands, she transferred it to the ammunition box in the garage which explains why it was found there, but Ms Swanson denied that.

16Just before the jury returned their verdict, they asked a question as follows:

"Could we please have clarification on Charge 4 regarding ‘possession’.  Is ‘possession’ purely related to the incident or prior time as well? And does ‘possession’ specifically relate to: owning it? physically holding it? or having it on the property? or having knowledge of it being on the property?"

17The answer I gave the jury after consultation with counsel, was made up of the direction I gave the jury during the charge.  This was tendered as Exhibit N and is appended to the end of these sentencing remarks. 

18That answer, in effect, directed the jury to focus on possession of the gun at the time of the incident.  Almost immediately after that answer was given to the jury, they delivered their verdict.

19Ms Clark has submitted that it may therefore be inferred that the jury did not accept Ms Swanson's version that the gun was yours and she had seen you with it previously, nor that you had entered the house with it, but that regardless of how the gun came to be in your hands, you entered into a struggle over it and it was fired at that time with no possible conclusion as to whose finger was on the trigger. 

20The jury was able to find you guilty of recklessness because you had struggled over the gun in the knowledge of the risk of seriously injuring Mr Lovitt.  Putting it another way, the recklessness resided in the struggle. 

21It would seem that by the time the jury asked this final question, they had rejected the prosecution case that you had entered the house armed with the gun, and had therefore decided that you were not guilty of Charge 1, intentionally causing serious injury.  The significance of this, Ms Clark submitted, is to place the offending at the lower end of the range of seriousness. 

22By contrast, Mr Fisher submitted that the incident should not be characterised as an accident, as Ms Clark sought to put it, because a finding of accidental injury would have resulted in verdicts of not guilty in relation to all the charges. 

23He submitted that you were in possession of the gun before that day, and that the jury were satisfied that the shooting of Mr Lovitt was not intentional, but you had foresight of serious injury probably occurring as a result of the struggle, leading to your conviction for Charge 2. 

24The timing of the verdict straight after the answer to the jury's question about possession does not necessarily exclude the jury having found that you were in possession of the gun previously, but it does fit with their finding of not guilty in relation to Charge 1.

25The location of the ammunition in the garage is much more consistent with your possession of the gun prior to the day in question.  Mr Fisher submitted that the reconciling of such inconsistencies may not be possible, but Ms Clark responded that it was necessary to do so in order to draw a conclusion as to gravity. 

26Mr Fisher's submission as to gravity was that the offending was not at the top end of the range, neither was it at the bottom.  That submission is not so different from the defence position as to call for necessity in my reaching a conclusion as to exactly what happened.  Mr Lovitt's injuries were indeed serious and that was not disputed in the trial.  I shall return to that matter shortly.

27I am not satisfied that the jury, in finding you reckless, decided that the shooting was accidental.  They were directed as to the elements of recklessness and were satisfied beyond reasonable doubt that the elements were made out.  I find that the shooting was in the mid-range of seriousness.

28The maximum penalty for recklessly causing serious injury is 15 years imprisonment, and for possessing an unregistered general category handgun, seven years for a first offence, which applies as you have no prior convictions for this offence. 

29As to the seriousness of Mr Lovitt's injuries, he was admitted to hospital with a gunshot wound to his abdomen and immediately underwent a blood transfusion.  His injuries included a large laceration to his liver and a lacerated kidney, a tension pneumothorax and a laceration to his forearm.  He underwent surgery during which the bullet, which was partly fragmented, was removed.  He had further surgery a few days later to repair a leak in his bile system from the site of the injury to his liver.  There were further complications during his recovery including significant pain requiring extensive analgesic medication, periods of agitation and drowsiness, an internal infection and a blood clot or DVT.  The medical records which were tendered, show that he was discharged on 21 June. 

30It is convenient, at this point, to refer to the victim impact statement provided by Mr Lovitt's mother, Ms Susan Lord-Milnes, in which she described the effects the assault had had upon her.  Her son had been living with her at the time.  The medical records show that she was a constant visitor to her son in hospital, and in her statement she described the horror for her of learning the true extent of his injuries while he lay in an induced coma for several days. 

31After three weeks in hospital, she took him home to look after him, and although his physical recovery was quite good, she considered that his mental state had changed greatly.  It was noted in the medical records that Mr Lovitt not infrequently experienced episodes of agitation and restlessness whilst an inpatient, which were taken to be anxiety and which were managed with medication. 

32Acting on the advice he received in hospital, Mr Lovitt engaged in counselling once he was discharged, but he told his mother he found it confronting and so could not continue. 

33Ms Lord-Milnes states that her son's mental state deteriorated to such an extent that she had to move out of her home and live elsewhere, leaving her son to live in her house.  She states,

34"The long term effects of this terrible event go on and on unabated.  Both our lives have changed to such a degree I find it hard to deal with this new reality.  I am always thinking about how Matthew and I can find a way forward from this destructive and life-changing crime." 

35Ms Clark urged me to apply limited weight to the victim impact statement on the basis of its hearsay content.  While there is no medical evidence permitting a comparison of Mr Lovitt's mental health before and after the assault, a close examination of the medical records confirms the general tenor of his mother's statement.  Otherwise, it is appropriate to apply reduced weight to some extent, but in large measure I accept the content of her statement.

36Turning now to your personal background and circumstances, Mr Kobert.  You are now 77 years old, a single man who was born in Germany and came to Australia, aged about 15.  You were born in 1940.  In 1941, your father was declared missing in action, presumed to have been killed.  Your mother worked for the Red Cross and so you were raised by your grandmother until the age of about ten. 

37At the end of the Second World War, you were separated from your mother as she was in West Berlin and you were in the East sector with your grandmother.  In 1951 you were able to join your mother in the West and in 1956 she brought you to Australia, where she married a man she had met in Germany. 

38In Melbourne, you worked in various jobs.  In 1965, you moved to South Australia where you worked in Andamooka in the Opal mines.  In 1966, you were convicted of manslaughter and sentenced to seven years imprisonment.  You were released from custody in 1970 and returned to Melbourne before resuming opal mining at Andamooka in 1971. 

39On 1 July 1974, you were convicted of murder and sentenced to life imprisonment.  No details of these offences have been able to be located, except that a firearm is believed to have been involved in each of them. 

40In 1990, you were released on parole and with your parole transferred to Victoria, you returned to Melbourne where your parole was successfully completed by 2000.

41You continued living with your mother at her home in Cochrane Street where you were living in May 2016 when these offences occurred.  Your mother had died in early 2015 and Ms Swanson had moved in later that year. 

42Following the completion of your parole, you continued to live quietly with only two instances of minor offending in 2007 and 2008.  You were arrested on 31 May 2016 and were remanded in custody with pre-sentence detention now being 511 days not including today.

43You will be serving your sentence in the same manner as you have experienced detention to date, with no visitors.  You are not an Australian citizen and face automatic cancellation of your visa with the high probability of being deported on completion of your sentence. 

44I can take into account the uncertainty for you that accompanies that likelihood, attended by the prospect of returning to Germany where you have no relatives or friends, and where you have not lived for the past six decades. 

45Fortunately, you are in fairly good health, although suffering from a persistent cough and arthritis and your heart Pacemaker requires regular monitoring.  You will serve your sentence in continuing isolation without visitors, and with the burden of uncertainty as to deportation, which together, amount to a degree of hardship beyond that experienced by other prisoners and I take that into account in determining the length of your sentence. 

46Your prospects for rehabilitation are difficult to assess.  On the one hand, you were convicted of very serious offending more than 40 years ago.  On the other hand, you completed your parole and have lived quietly ever since with only minor offending almost ten years ago. 

47My conclusion is that those prospects must be somewhat guarded and specific deterrence remains as part of the sentencing exercise.  Clearly, general deterrence is of great importance, particularly given the use of a firearm.

48In relation to the injury charge, I was referred by both counsel to the Sentencing Advisory Council sentencing snapshot and to the overview of sentences from the Court of Appeal. 

49The decision of the Court of Appeal in Saracevic v R concerned a sentence of 18 months for possession of an unregistered general category handgun of which nine months was cumulated upon other sentences.  The possession of the firearm in that case was linked to criminal offending in a broad sense, whereas in this case, specific use was made of the gun in the execution of a very serious offence with very serious consequences, leading to the conclusion that deterrence of both types is of importance.

50Because the firearm was used in this connection, it is necessary to avoid double punishment.  The verdict which, when considered in the context of the question by the jury and the answer given, suggests that the possession by you of the gun was linked only to the shooting itself and did not extend beyond that, as put by the prosecution during the trial.  In other words, the jury seems not to have accepted Ms Swanson's evidence that she had seen you with the gun before, and that you brought it into the house that night.  Nonetheless, a substantial sentence is warranted because of the way the gun was used.

51Would you stand now please, Mr Kobert. 

52I sentence you to five years imprisonment for Charge 2, and two years for Charge 4.  Six months of that sentence will be served in cumulation upon the sentence for Charge 2 which is the base sentence for this purpose.

53That results in a total effective sentence of five years and six months.  I order that you serve a minimum period of three years and six months before being eligible for parole.  You have already served 511 days by way of pre-sentence detention and I declare that time to be already served and it will be noted on the court record.

54The prosecution has applied for disposal and forfeiture orders which, through your counsel, are not opposed by you and I make those orders.

55Are there any matters which I have neglected, or omitted?

56MS CLARK:  Just one matter, Your Honour.  The agreement at the Bar table is that the pre-sentence detention is 511 days not including today.

57HER HONOUR:  All right, I will adjust that.  That is right, Mr Fisher?

58MR FISHER:  Yes, that's right, Your Honour.

59HER HONOUR:  Thank you.  Mr Kobert can be taken now, thank you Officer. 

60ACCUSED:  (Indistinct)..

61HER HONOUR:  Would you please go out the door, Mr Kobert.

62ACCUSED:  (Indistinct).

63HER HONOUR:  Officer, I wonder if you would assist with the removal of the prisoner.  Thank you. 

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(Exhibit N)

Answer to Jury question

Extract from Charge

The prosecution must prove that the gun was physically in the accused’s custody, or was under his control.

A person does not need to be carrying the item, in this case the gun, or to have it physically with him, to have custody or control over it.

For example, it would be enough to have the item either on him, or within reach, or in a location where he maintains the power to place his hands on it, and so have manual custody when he wishes to. In this case, the relevant location might be the garage, if you are considering drawing the inference that the prosecution asks you to draw, that he got the gun from the garage that night before entering the house. In those circumstances, you would have to be satisfied that he knew the gun was in the garage, before you could find him guilty of its possession in that way.

As to intention, because you do not know what was in the mind of the accused, you are asked by the prosecution to infer that the accused intended to possess the gun. You are asked to draw that inference from the surrounding circumstances – from the evidence by Ms Swanson that the gun was his and she had seen him with it once before, about two weeks earlier, when he waved it around outside. Also, the evidence of the location of the ammunition in the garage, and the pliers and knife seen next to it in the photo. Finally, the evidence of Ms Swanson as to what happened on the night in question, that the accused came in with the gun, and after shooting Mr Lovitt, went out to re-load it and came back with the re-loaded gun.

Remember what I have already directed you about how to draw inferences. You would have to be satisfied that the evidence is capable of sustaining these inferences.

___________________________________________________

You will remember that I read you part of the transcript at p.115, which was Ms Swanson’s evidence about whether she had ever been in the garage.  She said she hadn’t been in there while Mr  Kobert was living there, but has been since then.

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