Director of Public Prosecutions v Lea

[2021] VCC 412

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02124

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL EDWYN LEA

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JUDGE:	Her Honour Judge Leighfield
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2021 (case conference), 26 March 2021
DATE OF SENTENCE:	13 April 2021
CASE MAY BE CITED AS:
MEDIUM NEUTRAL CITATION:	[2021] VCC 412

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:   Sentence – reckless conduct endangering serious injury– prohibited person in possession of firearm – relevant prior criminal history – guilty plea after committal – gravity of offending – retaliation – offending whilst subject to Community Correction Order – drug and alcohol abuse – deprived background – impact

of COVID-19 on burden of imprisonment – specific and general deterrence – community protection and denunciation

Legislation Cited:                Crimes Act 1958 (Vic) s23; Firearms Act 1996 (Vic) s5, s151.

Cases Cited:Kelly v The Queen [2020] VSCA 171; R v Verdins [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37.

Sentence:  Total effective sentence of three years and nine months imprisonment with a non-parole period of two years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Morgan Brown	Office of Public Prosecutions
For the Accused	Mr Christopher Terry	Slater & King

HER HONOUR:

Introduction

1Daniel Lea, you have pleaded guilty to one charge of reckless conduct endangering serious injury (Charge 1) and one charge of being a prohibited person in possession of a firearm (Charge 2).  The maximum penalty for Charge 1 is five years’ imprisonment whilst the maximum penalty for Charge 2 is 10 years’ imprisonment.  Both charges relate to a single incident on 19 April 2019.  You were 33 years of age at the time.

Circumstances of the Offending

2The full circumstances of the offending are set out in the Prosecution Opening dated 25 February 2021 which was tendered as Exhibit A on the plea.

3However, in short compass, you and the complainant in this matter had known each other for a period of approximately 18 months to two years at the time of this incident.  At some point prior to 10.30 pm on 19 April 2019, you became aware that the complainant was alleged to have raped a 14 year old girl who was known to your friends.  Some of your friends and other members of the community were also aware of these allegations.  As a result of the allegations, numerous people attended at the complainant’s address at various times on 19 April 2019.

4

The first incident occurred during the afternoon whereby an individual attended at the address and used a baseball bat to smash every window and panel of the complainant’s car.  Sometime later, between 9 and 9.30 pm, four or five cars arrived outside the complainant’s house.  At the time, the complainant was inside with a number of friends and his partner.  Approximately 20 to 30 people alighted from the cars and started yelling and making threats to hurt and kill the complainant.  Fifteen to 20 of the people present then started to throw beer bottles, pot plants and rocks at the house.  The group left after about 10 to 15 minutes.  

It is not alleged that you were present or involved in either of these incidents.

5At approximately 10.30 pm, a further six vehicles attended at the complainant’s address and approximately 40 people got out of the cars and approached the complainant’s house yelling and making threats.  Some people in the group also threw objects at the house.  The complainant, along with two of his friends came to the front door of the house and told the group to ‘fuck off’.  The complainant was carrying an air rifle at the time in an attempt to scare the group of people away.

6You were present in the group of people and you went to the screen door and started to pull it open.  One of the occupants of the house then pulled the screen door shut and locked it.  The group continued to yell and throw bottles – albeit it is not alleged that you were involved in this activity.

7

You were then seen by both the complainant and one of the other occupants of the house, to walk up to the front door of the house holding a rifle at waist height with both hands.  You pointed the gun towards the doorway and fired the gun.  Both the complainant and his friends had retreated inside when you did this.  

The complainant did not see you discharge the gun, however he did hear the sound of the shot.  This conduct constitutes Charge 1 – reckless conduct endangering serious injury, and Charge 2 – prohibited person possess firearm.  The group of people, including yourself then returned to the cars and left approximately 10 minutes later.

8During the subsequent forensic investigation, a .22 calibre projectile was located in the fascia of the front door.  A brass .22 rim fire casing was also located on the footpath outside the complainant’s house.

9You were arrested at your home on 25 April 2021.  After being cautioned, police asked you where the firearm was, to which you replied ‘I chucked it off McCoy’s Bridge.’  Police were unable to locate the firearm despite searching the river in the area which you had indicated.

10You were not interviewed in relation to the matter and were remanded in custody later that same day.  You have remained in custody since that time.  Accordingly, you have 719 days (or just shy of two years) of pre-sentence detention, not including today’s date.

Victim Impact

11I note that no victim impact statement has been filed in this case.  Given the circumstances and context of this offending I am not in a position to determine what impact this offence has had on the complainant, although no doubt an incident such as this would have been frightening at the time, even in circumstances where the complainant himself had produced a gun.

Prior Criminal History

12You do come before the court with a relevant prior history.  You first came before the court in 2009 when you were 22 years of age on charges of assaulting and resisting police and being drunk in a public place during an incident on New Year’s Eve.  You were placed on an adjourned undertaking without conviction.  Then, over the next 10 years, you appeared before the court on a number of occasions largely with driving-related offences and breaches of court-ordered interventions.  Of most relevance to this sentencing exercise, however, are two incidents for which you were sentenced in 2010 and 2013.

13In 2010 you were sentenced in the Mildura County Court on a charge of recklessly causing serious injury for which you received a partially suspended sentence of imprisonment.  As was fairly conceded by prosecuting counsel, whilst relevant, it must be kept in mind that you were sentenced for that incident on the basis that you engaged in excessive self-defence in circumstances where your father attacked you with a machete.

14

Of greater relevance is the matter in 2013 in which you were sentenced at the Shepparton Magistrates’ Court to an aggregate term of 12 months’ imprisonment with a non-parole period of six months, for two charges of reckless conduct endangering life, one charge of being a prohibited person using a firearm, two charges of make threats to kill, two charges of contravening a family violence intervention order and one charge of using a firearm in a populous place.  

The circumstances of that matter had significant similarities to the current matter in that you and an associate had been drinking, one of you took possession of a rifle, you drove together to the victim’s home, there was a confrontation during which you retrieved the firearm and pointed it towards the victim, and discharged a number of shots in the victim's direction.  This conduct also breached the suspended sentence which you were on and you had 18 months of that sentence reinstated with a non-parole period of eight months.  You were ultimately paroled with eight months of the sentence left and successfully completed your period of parole.  The similarities between the circumstances of this incident in 2013 and the current incident are such that specific deterrence carries significant weight in sentencing you today.

15

I also note that at the time of the current offending, you were completing two community corrections orders for predominantly driving and drug offences.  

This must also be taken into account in the sentencing synthesis as it is an aggravating feature of your offending and has an impact on the assessment of your prospects of rehabilitation.

Plea of Guilty

16You indicated your intention to plead guilty to the charges the subject of this indictment during an emergency case management case conference in this court on 2 February 2021.  Whilst your plea was not entered at the earliest opportunity – the matter had already proceeded through a contested committal in the Magistrates’ Court where the complainant was cross-examined – it is still a valuable plea with substantial utilitarian value.  As submitted by Mr Terry on your behalf, there are two aspects to the utilitarian value of your plea.  The first relates to the fact that whilst the prosecution case in this matter was a strong circumstantial case, there were still genuinely triable issues – as discussed at the case conference of this matter.  Secondly, your plea gains additional value in the current climate of the pandemic and the significant impact that COVID-19 has had on the efficient running of the criminal justice system. 

17I also accept that your plea saves the complainant and other witnesses from having to give further evidence at trial, saves the community from the cost and expense of running a trial, and reflects an acknowledgement by you of your responsibility for your part in the offending.

18Accordingly, despite your pleas of guilty not having been entered at the earliest opportunity and despite the complainant having been cross-examined at committal, I have still given you a significant discount for those pleas.

Gravity of Offending

19Your counsel very properly conceded that your offending on this occasion was serious.  Whilst I accept that this offending was not pre-planned, in the sense that you did not attend with the intention of firing at the home or the complainant but rather retrieved the gun in response to the production of the air rifle by the complainant, in my view your offending on Charge 1 still falls at the mid to higher end of the range for a charge of reckless conduct endangering serious injury.

20You let off a shot in the direction of the doorway to the victim’s home, in circumstances where you knew that people were inside that home.  Your conduct was inherently dangerous and placed those inside at risk of being seriously injured.

21Further, your conduct was retaliatory in nature and you knew what you were doing was wrong.  As stated by the Court in Kelly v The Queen [2020] VSCA 171 at [46],

[t]he courts have repeatedly emphasised that the sentences for individuals who take the law into their own hands and commit crimes in order to resolve real or perceived grievances must be sufficiently high to deter others from adopting that course.

22Additionally, you committed these offences whilst you were subject to two community corrections orders; and in circumstances where you had committed a very similar offence in 2013.

23Taking into account all of these matters, despite your plea of guilty and the lack of pre-planning, I consider your offending to have been at the mid to high end of the range for Charge 1, and significant weight is required to be given to the sentencing purposes of deterrence – both general and specific, community protection and denunciation.  I have, however, in sentencing you for this offence kept in mind that the maximum penalty is only five years’ imprisonment.

24Insofar as Charge 2 is concerned, the sentencing principles of specific deterrence, community protection and denunciation also carry significant weight given that this is not the first time that you have been a prohibited person in possession of a firearm.

Personal Circumstances

25You are now 35 years of age.  You had a dysfunctional childhood, living with your mother until you were 12 years of age, at which point you commenced living on the streets for a period of time.  At 16 years of age you went to live with the family of one of your friends, who were kind and supportive of you.  You consider this family to be your adoptive family and refer to your friend’s mother, who passed away from cancer in November 2019, as your ‘adopted mother’.  You have had no contact with your biological family in recent years but your adoptive siblings are supportive of you.  Your adoptive sister and her partner attended at court to support you on your plea, and I am told that your adoptive brother is willing and able to offer you a place to stay on your release from custody.

26

You have a limited education history, having been expelled during your second year of high school and having never returned to complete your education.  

You also have a sporadic employment history working as a farmhand on your grandparents’ farm, as a maintenance worker and in a slaughterhouse.  It was whilst you were working on your grandparents’ farm that the previously-mentioned incident with your biological father occurred.  The two of you had an argument and your father threatened to stab you during the fight, saying that he would cut you up into little pieces.  You responded by stabbing your father and criminal charges were laid against you.  You have had no further contact with your father since this time.

27You have three children from a previous relationship.  Those children are living with their mother and you do not currently have any contact with them due to an intervention order which you have been abiding by.  You also have a fourth child – a five-year old son – with your wife Lisa.  Whilst there have been some difficulties in that marriage, you and Lisa have been in regular contact with each other whilst you have been in custody and there are prospects of that relationship resuming when you are released from custody.

Drug and Alcohol Issues

28Perhaps unsurprisingly given your personal history, you have a history of alcohol and methamphetamine abuse.  You commenced drinking alcohol from an early age and have consumed large quantities of alcohol throughout adulthood, with your only periods of sobriety being whilst you are in custody.

29Your descent into the use of methamphetamines has been more recent.  Approximately five years ago you were involved in a motor vehicle collision whereby a motor vehicle travelling at 80 km per hour struck you whilst you were crossing the road.  You had been walking your dog at the time.  You were hospitalised for some time following the accident and you suffered bleeding to the brain.  There is a possibility that you have an acquired brain injury and I am told that you were in the process of having neuropsychological testing organised when you were remanded.  This has been put on hold and no report has been obtained to confirm whether you do or do not have such an injury for the purposes of this plea.

30In the aftermath of the accident you commenced using methamphetamines and continued to use them until you were remanded.  You told Kerrin Danswan, psychologist, that you did attempt to reduce your alcohol and methamphetamine consumption in the period leading up to this offending given your adopted mother was sick with cancer and did not approve of your abuse of both drugs and alcohol.  However you were unsuccessful in abstaining, and admitted to Ms Danswan that you were both alcohol and drug-affected at time of your offending.

31In her report dated 12 May 2020, Ms Danswan made the following observations about your use of drugs and alcohol, and it’s interaction with your mental health and offending:

[t]here is evidence that Mr Lea was suffering from alcohol use disorder and stimulant use disorder in the months prior to and at the time of the offending…

It is likely that his depressive disorder has been present for some time but has been untreated and Mr Lea will likely have been using substances as a way of self-medicating/ blocking out painful memories…

Mr Lea’s behaviour is further affected by his drug and alcohol use, which have impacted on his offending.  He has been drinking from his youth and this is likely the result of childhood neglect and early exposure to homelessness, lack of education and a sporadic working history.  Mr Lea’s life has typically lacked routine and has been defined by rejection from his biological family and feelings of low self-worth, depression and social anxiety.

As a result of the above, Mr Lea turned to maladaptive coping strategies in alcohol use and eventually, methamphetamine use.  Whilst he felt accepted by his ‘adopted family’, the damage to his self-esteem and confidence had already occurred in the years prior to living with them.

32Your counsel, Mr Terry, conceded that Ms Danswan’s findings do not enliven the principles in R v Verdins [2007] VSCA 102. Nor does your abuse of alcohol or drugs give you an excuse for your offending. However, Mr Terry submitted on your behalf that Ms Danswan’s findings are relevant in two ways. Firstly they provide a context in which your offending occurred. Secondly, given the manner in which your traumatic upbringing continues to impact on your psychological and personal circumstances, the principles set out in Bugmy v The Queen [2013] HCA 37 apply in your case – that is that I should give full weight to your deprived background when considering the weight to be given to each of the sentencing purposes. I intend to do so.

33

In my view, there is also a third way in which Ms Danswan’s findings are relevant – in determining your prospects of rehabilitation.  In Ms Danswan’s opinion you are motivated to try and change your lifestyle.  This motivation is reflected in the efforts you have made whilst on remand to engage in counselling to address your drug and alcohol issues.  On the plea I received a report dated 25 January 2021, from provisional psychologist Rene Pirotta who is an AOD clinician at Metropolitan Remand Centre.  According to that report you commenced individual counselling in custody with Caraniche on 23 November 2020 and completed six sessions of alcohol and other drug counselling between then and 11 January 2021.  You were then enrolled in a further six sessions which commenced on 18 January 2021.  

You also participated in a three hour alcohol and other drugs communication program.  The report states that in the eight sessions completed as at the date of the report, you had demonstrated a high level of engagement.  It is to your credit that you have taken steps to begin addressing your issues whilst in custody.

34Despite the initial steps which you have already taken towards addressing your issues, it is apparent from Ms Danswan’s report that you will still require significant assistance in the community on your release to remain abstinent from drugs and alcohol.  In Ms Danswan’s opinion you require intensive support to develop skills to manage your emotions and stress without relying on substance use, otherwise your pattern of self-medication will continue.  She recommends that you undertake psychological treatment to address your emotional regulation issues, learn adaptive strategies for managing your anger effectively without engaging in violence, and address your mental health issues, specifically management of your depressive symptoms.

35It is apparent, and was conceded by your counsel, that your prospects of rehabilitation are firmly tied to your ability to engage in this kind of treatment and avoid alcohol and substance abuse in the future.  Ms Morgan submitted that your prior criminal history is also of particular concern when assessing your prospects of rehabilitation.

36Taking into account all of the information before the court, and bearing in mind your prior history and your breach of the community corrections orders at the time of this offending, I am of the view that given your current motivation to change, your commitment to obtaining counselling whilst in custody, and the continued support from your adoptive siblings, your prospects for rehabilitation are reasonable.  In my view it is important in your particular circumstances that the sentence I impose is framed in a way which provides an opportunity for you to be supported and supervised in the community for an extended period of time after your release, whilst also bearing in mind that you may ultimately be required to serve every day of your sentence in custody.

Impact of COVID-19

37During the period that you have been in custody, you have been impacted by the COVID-19 pandemic in a number of ways.

38You have been locked down and spent significant periods in isolation since the start of 2020.  Your access to appropriate services and supports have been restricted – albeit I note that once restrictions started to be eased at the end of last year, you took steps to undertake the drug and alcohol counselling outlined earlier.  You have also had restricted access to family and friends, receiving no in-person visits at all during 2020.  This has been particularly difficult for you in circumstances where your adoptive mother passed away whilst you were in custody in November 2019.

39Finally, you have also been subjected to stress in respect of concern for your health should the virus spread in prison, and concern for your family members in the community.

40I have taken this added burden of imprisonment into account.

Sentencing Submissions

41Both Mr Terry and Ms Brown submitted that the only appropriate disposition available to the Court in this case would be a term of imprisonment involving a head sentence and a non-parole period.

42Mr Terry further conceded, correctly in my view, that your head sentence must exceed the period you have already spent in custody.  Mr Terry did, however, submit that given your reasonable prospects for rehabilitation, your need for ongoing treatment and support in the community upon your release from custody, and your previous successful completion of a parole period, that it would be open to the court to consider imposing a relatively lengthy gap between the head sentence and non-parole period.  Ms Brown did not oppose this submission.

43Both Mr Terry and Ms Brown submitted that in sentencing you I should consider the reckless conduct endangering serious injury charge to be the more serious of the two charges before the court despite the firearms charge having a higher maximum penalty, and effectively submitted that there should be a modest degree of cumulation between the two charges.[1]

[1] Mr Terry submitted that there should be a high degree of concurrency between the charges, whilst Ms Brown submitted that there should be a modest degree of cumulation.

Sentence

44I agree with both counsel that in this particular case, despite the greater maximum penalty for the offence of being a prohibited person possessing a firearm, the more serious of the two offences is the charge of reckless conduct endangering serious injury.  I further agree with both counsel’s submissions that there must be a measure of cumulation between the two charges, but that any such cumulation should be in modest proportion.

45The head sentence in this case must reflect the overall seriousness of your offending and reflect the weight to be given to specific and general deterrence, community protection and denunciation in the sentencing synthesis, whilst also being an appropriate term if you are required to serve every day of that sentence.  However, I accept Mr Terry’s submissions that your reasonable prospects of rehabilitation, previous ability to comply with parole; your need for an extended period of support and supervision in the community to enable rehabilitation, and the availability to you of ongoing support from your adoptive family should all be given weight in setting the non-parole period in this case, and allow for the possibility of you having a lengthy period of time in the community under supervision.  I have also taken into account current sentencing practice, and the principles of proportionality and totality in determining the length of the head sentence and non-parole period in this case.

46Mr Lea, on Charge 1, you are convicted and sentenced to three years’ imprisonment.  This is the base sentence.

47On Charge 2, you are convicted and sentenced to two years’ imprisonment.

48I direct that nine months of the sentence on Charge 2 be served cumulatively on the sentence imposed on Charge 1.

49That makes a total effective sentence of three years’ and nine months imprisonment.

50I order that you serve a minimum of two years’ imprisonment before becoming eligible for parole.

Pre-Sentence Detention

51The period of 719 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the courts.

S6AAA Declaration

52Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective sentence of five years and three months' imprisonment with a non-parole period of three years and 10 months' imprisonment.

Ancillary Orders

53Pursuant to s.151 of the Firearms Act 1996 (Vic), I make a forfeiture and disposal order in respect of the following items:

(a)   fired cartridge case; and

(b)   .22 calibre (rimfire) projectile.

54So Mr Lea, as you probably gathered from what I have just said, the sentence is a sentence of three years and nine months' imprisonment.  You have to do two years before you are eligible for parole.  You have already done 719 days of those two years, which is not that far short of two years.  So you should be coming up to a point where you are eligible for parole in a very short time.  Obviously, you will need to go through the process of applying for parole and it is up to the Parole Board whether they actually grant you that parole and at what point they grant it to you.  What I have attempted to do, for the reasons I have already mentioned in this sentence, is to give you an opportunity, assuming that you are granted parole by the Parole Board at the earliest opportunity, to have an extended period of time in the community with assistance and supervision in place.  Do you understand all of that?

55OFFENDER:  Yes, Your Honour.

56HER HONOUR:  All right.

Other Matters

57Counsel are there any other matters that either of you wish to raise at this stage in respect of either the sentence or reasons for sentence?

58MS MORGAN:  No, Your Honour.

59MR TERRY:  No, Your Honour.

60HER HONOUR:  All right.  Are there any additional orders sought, Ms Morgan?

61MS MORGAN:  No, Your Honour, there was just the sole ancillary order relating to the ammunition which Your Honour has made.

62HER HONOUR:  All right, thank you.

63MS MORGAN:  If Your Honour pleases.

64HER HONOUR:  All right, well if there is nothing further, we will simply adjourn the matter.  Mr Terry, would you like an opportunity to have a quick chat to your client before he goes off the screen?

65MR TERRY:  Yes, I would, Your Honour, thank you.

66HER HONOUR:  All right.  I will allow you to do that.  So I will just step off the Bench and then that can occur, all right?

67MR TERRY:  Thank you, Your Honour.

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