Director of Public Prosecutions v Lynch

[2014] VCC 2331

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR-14-00412

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW JAMES LYNCH

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	16 October 2014
CASE MAY BE CITED AS:	DPP v Lynch
MEDIUM NEUTRAL CITATION:	[2014] VCC 2331

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	Mr A Moore
For the Accused	Mr R. Hutton

HER HONOUR: 

1Matthew James Lynch, you have pleaded guilty before me to two charges which may have placed another person in danger of death; one charge of conduct which may have placed a person in danger of serious injury and two charges arising out of your use of a firearm, being Charge 2 of using the firearm and Charge 3 of using a silencer, both charges relating to a time when you were prohibited from doing so. 

2The maximum penalty for each of the charges of conduct endangering life, which are Charges 1 and 4, is 10 years imprisonment.  The maximum penalty for Charge 5, which is conduct endangering serious injury, is five years imprisonment.  The maximum penalty for Charge 2, being a prohibited person using a firearm is 10 years imprisonment and the maximum penalty for being a prohibited person using a silencer is eight years imprisonment.  Each of these penalties are, of course, a reflection of the community's concern about the potential danger to human life of conduct falling within these categories.  Your offending was, by any account, offending which had great potential to endanger human life within Benalla. 

3Each of the offences occurred on the evening on Wednesday, 28 August 2013.  On that evening, you had consumed a substantial amount of alcohol.  You drove around the township of Benalla in your motorcar.  You had with you in the car a .22 calibre rifle fitted with a silencer.  As I have said, your possession and later use of that rifle in the circumstances I will detail constitutes Charges 2 and 3.  As you drove around Benalla, you appear to have selected various buildings at random and fired shots at them.  Charges 1, 4 and 5 relate to three separate incidents in which you fired shots. 

4Charge 1 relates to you firing into the home of your first victim, Mary Miller.  At about 10.36 pm on that night, she was in the dining room of her home when you fired a bullet into the house.  She heard the bullet hit and was terrified.  She dropped to the floor and heard two further shots after the initial bullet.  She was able to crawl to the phone and rang for the police.  So that is the subject-matter of the first charge. 

5During that evening, you also fired a shot into a store owned by Mr Pratt.  He found a bullet hole in the glass front of the door the next evening.  At the time you fired your gun into his shop, the shop was closed and he and his family were asleep in their residence behind the shop.  That is the subject-matter of Charge 4. 

6The last incident is the subject-matter of Charge 5; it relates of course to the same night.  It relates to your conduct in firing into the front window of the Benalla police station.  The shot appears to have been directed into the public waiting area of the foyer.  No one noticed when you fired that shot.  The bullet hole was not found until two days later.  The area into which you fired was an area usually manned by an officer attending to inquiries from the public.  Thankfully, both for the public and for yourself, there was clearly no one present at the time that you fired the shot.  So that is the subject-matter of Charge 5.

7You were apprehended by the police on that same evening after brief negotiation and the rifle and the box of ammunition were located and seized.  Clearly your conduct, as I have described it, on that evening was terrifying and potentially deadly.  I received into evidence two impact statements, though clearly there may have been many more people potentially affected by your actions on that night. 

8The first victim impact statement was from Mary Miller who read that victim impact statement to the court.  In it she detailed how, because of what you have done, she no longer feels safe in her own home.  She left home for many weeks after the incident and, although she has now returned, she no longer feels secure in her own home.  She detailed also how her personality has changed as a result of her feelings of insecurity.  She describes herself as having been changed from a cheerful, independent, confident person, to someone who now feels insecure, who finds it very difficult to make decisions and is increasingly reliant on family and friends.  She feels constant anxiety and stress.  She is terrified about going into public places.  She just cannot get things back the way they used to be and she feels powerless in her attempts to do so. 

9Mr Pratt also provided a victim impact statement.  He was forced to shut his shop for half a day in order to have the shop repaired.  He described the incident as causing him and his family profound shock and fear.  This reaction, of course, is only to be expected.  It must have been a terrifying ordeal for each of the persons who found that they had been shot at by you in this way. 

10This matter was previously mentioned before the court in an earlier circuit.  That was for the purpose of obtaining a Forensicare report as to your mental state.  Two reports have been obtained and, in particular, the Forensicare report was obtained in July of this year.  The question had been raised at the previous hearing as to your mental capacity.  Your counsel has indicated that the plea before me was to be conducted on the basis that there is no diagnosis of any mental condition which would reduce your moral culpability for the actions which I have outlined, which took place on that night.

11The one report that has been relied upon has, however, pointed out the fact that each of your episodes of antisocial behaviour in the past and also at the time of the offending for which I am to sentence you, have been fuelled by alcohol.  You have been accustomed to drinking up to one litre of bourbon a day.  Apart from the clear indication from that level of alcohol use that you must be an alcoholic, it is an indication that, unless you cease your alcohol use, you will continue inevitably to engage in antisocial behaviours.  This fact is also apparent from the circumstances of your prior convictions.  In fact, you do not have a significant criminal history.  Your criminal history spans only from the very end of 2008 up until 2011, a period of three years.  Prior to that, you appear to have lived a law-abiding life. 

12In the first of those matters, though, you used some gunpowder to make a bomb to blow up rabbits.  Clearly, your action in doing so was irresponsible and very dangerous.  Luckily no one was injured in you doing so.  The second major offence involved an attempted arson.  You were, as I understand it, angry about a man who had a previous relationship with your girlfriend.  Whilst you were under the influence of alcohol and drugs, you decided to burn down his house.  Once again, the behaviour which I have identified is behaviour of a very concerning kind.  It is a behaviour which may well have resulted in the loss of human life or in great danger otherwise to members of the public.  The third matter for which you were dealt with was an incident in which you attempted to stab a police officer.  Once again, you were under the influence of alcohol and drugs at the time.  It does not need to be said that behaviour such as this is extremely life-threatening and it is another example of where your behaviour has spiralled out of control when you use alcohol or drugs. 

13For those previous convictions, you received Community-based Orders or a Community Corrections Order.  You appear to have breached one or other of those orders and you were ultimately sentenced to 12 months imprisonment with a non-parole period of six months.  At first glance that seems to have been your first time in custody,  However, I am told that you have in fact served three prior terms of custody in relation to those offences which I have described and those periods of custody were periods of time on remand.  However, you have now been on remand in relation to this matter for approximately 13 months.  That is a significant period of imprisonment and appears to be by far the longest time that you have spent in prison.  The great advantage to you of that period of imprisonment so far is that you have not had access to alcohol or drugs and so you have been able to dry out.  As I understand it, though, you have not had any intensive treatment for alcohol or drug abuse whilst in prison. 

14Mr Lynch, despite the seriousness of this offending and despite the seriousness of the past offending over the three years that I have identified, it appears that you have some significant family support.  Your family background is unexceptional.  In fact, your father was a senior sergeant of police at Benalla until his tragic death in 2013.  You have two brothers and sisters and neither of them have been in trouble.  You had some difficulty at school, but although you did not leave school with an academic qualification, you completed a bricklaying apprenticeship and you have had a solid working history as a bricklayer and as a handyman.  You established your own business for a short time as a bricklayer in the Benalla area.  Unfortunately, your skills as a bricklayer were not matched by your skills in financial administration and ultimately your business appears to have resulted in your bankruptcy. 

15However, your good working capacity is demonstrated by the fact that you have since then been employed doing various handyman jobs and your current employer is happy to have you back upon your release from prison.  He appears to support the proposition that you are a decent member of society as long as you do not have contact with alcohol. 

16There was a significant representation of people in court to support your plea.  You have a child from a previous relationship and another child from your first marriage.  You appear to have very little to do with those previous partners, but you do have a present partner who is very supportive of you and who is in court with you.  Her family was in court as well.  You live with your mother who has custody of one of your children. 

17The thrust of the plea from your counsel was that I should impose a sentence which addressed the severity of your offending, but which also allowed you to be closely supervised in order that your alcoholism could be addressed.  The legislation under which Community Corrections Orders can be imposed by me has been recently changed so that I may impose a Community Corrections Order in addition to a sentence of up to two years imprisonment.  This has the advantage of reflecting the need for a significant period of imprisonment because of the nature of your offending, but also providing for intensive supervision of you on your return to the community.  Supervision under a Community Corrections Order appears to me to be superior to supervision by way of parole and I am able to make an order to that effect in order to address what appears so far to be your rampant alcohol addiction.

18Mr Lynch, unless your addiction to alcohol is brought under control, you will remain a danger to the community whenever you have access to it.  It is in the community's interest as well as your own interest that you desist from using alcohol.  Whatever sentence is imposed upon you, Mr Lynch; you cannot stay locked up forever.  Unless your alcoholism is treated, there is a likelihood of other significant dangerous events occurring.  As I have noted already and it will be clear from these sentencing remarks, you are very fortunate indeed that you did not cause physical injury during your rampage on the evening of 28 August 2013, though I note that you have caused injury of an emotional kind to your victims and those injuries are set out in the victim impact statements. 

19I have obtained a report, Mr Lynch, which indicates that you are a suitable candidate for a Community Corrections Order.  What I propose to do is to make an order for imprisonment and then make an order for a Community Corrections Order which will commence as soon as that term of imprisonment is at an end.  Mr Lynch can you stand up, please.

20On Charges 1, 4 and 5 on the indictment, being the two charges of conduct endangering life and the one charge of conduct endangering serious injury, you are convicted and sentenced to two years imprisonment,.  That is an aggregate sentence and I am imposing an aggregate sentence as I take the view that each of those charges arose out of the same pattern of events, the same course of conduct.

21In relation to Charges 2 and 3, which are the charges relating to the firearm, you are convicted and sentenced to six months imprisonment.  Once again, that is an aggregate sentence in relation to those two charges  Those two charges arise out of the same course of conduct.  I direct that all sentences be served concurrently so the total effective sentence of imprisonment is two years imprisonment.  I declare that you have been in custody for 413 days and that that period be taken as a period of imprisonment already served under this sentence

22Mr Lynch, as I have indicated, I will further order under each of the sentences imposed today, that you serve a Community Corrections Order; that Community Corrections Order will commence from the date of your release from prison and it will continue for a period a two years thereafter. 

23If I could just have that terms of the Community Corrections Order printed out and the order confirmed.  I need to indicate to you, Mr Lynch, what that Community Corrections Order involves, because there are certain conditions and if you do not comply with those conditions, you may be brought back for a further sentencing hearing.  I can only make an order for a Community Corrections Order if you are prepared to undertake those conditions.  So at the end of this, I will be asking you whether you do consent to be placed on a Community Corrections Order with these conditions. 

24So, the first condition is that you must attend at Wangaratta Community Correctional Services within two working days of the completion of your imprisonment.  The second order is that you perform 300 hours of unpaid community work over that period of two years.  You will be directed by the regional manager as to where that community work will be performed.  Thirdly, I will order that you be under the supervision of a Community Corrections Officer for a period of two years.  Next, you must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager.  Next, you must undergo mental health assessment and treatment, including, but not limited to, mental health, psychological, neuro psychological and psychiatric treatment and that treatment may take place in a hospital or residential facility if the regional manager directs so.  You must also undertake programs consistent with the purpose of treatment and rehabilitation, which must include employment, educational, cultural and personal development programs.

25If I could perhaps have the document with the conditions on it.  So those are the special conditions, Mr Lynch, and the reason that I am making those special conditions is to address your alcoholism and to try to ensure, as far as I can, that you do not offend into the future by reason of your alcoholism.  There are also some standard conditions of a Community Corrections Order, and these are, firstly, you must not commit any other offence for which you could be imprisoned during the time the order is in force; secondly, you must comply with any obligation prescribed on you; you must report to and receive visits from the Secretary; you must let a Community Corrections Officer know within two clear working days of you changing your address or job; you must not leave Victoria, except with the permission of the Secretary and you must obtain all lawful instructions from the Secretary. 

26Mr Lynch, do you understand what I have just told you and do you agree to undertaking those conditions as part of the Community Corrections Order.

27OFFENDER:  Yes I do.

28HER HONOUR:  I will hand down the document; you will need to sign it and your counsel will explain it to you whilst that is done.

29MR HUTTON:  Can I leave the Bar table, Your Honour?

30HER HONOUR:  Yes, certainly.

31MR HUTTON:  My client has signed that, Your Honour and he understands or indicates he understands it.

32HIS HONOUR:  Thank you.  Now, Mr Lynch, you have signed that document and I have signed it and that order will now be made. 

33MR MOORE:  Your Honour, I have here the s.464 order and also I am applying for forfeiture of the items mentioned, she Schedule List Order, Your Honour.

34HER HONOUR:  Yes, we will need to make another order for forfeiture.  I will sign the order.  Is there any issue about this?

35MR HUTTON:  No, agree with that, Your Honour.  

36HER HONOUR:  Mr Lynch, the prosecutor has sought a forensic sample order from you and the purpose of such an application is in order for a sample of your DNA to be added to the database of DNA samples.  I propose to make such an order.  In making the order I need to give my reasons and my reasons are that the seriousness of the circumstances warrants the order; your prior convictions are such to warrant the order; the order is not opposed and the granting of the order is in the public interest.  I am required also, Mr Lynch, to tell you that, once having made this order that a member of the police force may use reasonable force to enable the procedure to be conducted. 

37I will note that you have served 413 days in custody and those days be taken as time already served under the order.

38I am also required to tell you what sentence I would  have imposed on you had you not pleaded guilty to these charges.  Mr Lynch, had you not pleaded guilty, I would have sentenced you to a period of four years imprisonment with a non-parole period of two and a half years.

39Are there any other matters?

(At this stage the court proceeded with another matter.)

40MR MOORE:  That completes the circuit, Your Honour.

41HER HONOUR:  I have just got to sign this final order. 

42Thank you, remove the prisoner.  Thank you very much, Mr Hutton for your assistance. 

43MR HUTTON:  I'm grateful to Your Honour for doing it today.

44HER HONOUR:  Yes, and that does complete the circuit, so I will thank you, Mr Prosecutor for all your assistance in the circuit.

45MR MOORE:  Thank you, Your Honour.

46HER HONOUR:  I will adjourn the court sine die, Mr Tipstaff. 

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