Director of Public Prosecutions v Neve
[2013] VSC 488
•13 SEPTEMBER 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT SHEPPARTON
CRIMINAL DIVISION
No. S CR 2012 0158
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAYNE ROBERT NEVE |
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JUDGE: | BELL J | |
WHERE HELD: | SHEPPARTON | |
DATE OF HEARING: | 29 MAY 2013 | |
DATE OF SENTENCE: | 13 SEPTEMBER 2013 | |
CASE MAY BE CITED AS: | DPP v NEVE | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 488 | |
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CRIMINAL LAW – sentencing – domestic violence of husband towards wife – criminal damage by killing family dog – making threats to kill with loaded double barrel shotgun – reckless conduct endangering life by struggling with victim over the shotgun – intentionally causing injury – terrible consequences for victim – offender aged 51 years, of good character and with no previous convictions – strong and genuine remorse and excellent prospects of rehabilitation – no need for specific deterrence and protection of community – denunciation and general deterrence – totality – offender intoxicated due to use of prescription medication and abuse of alcohol – whether an aggravating, mitigating or neutral consideration – offender would serve imprisonment harder than most due to medical condition – immediate sentence of imprisonment called for – orders for partial cumulation.
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APPEARANCES: | Counsel | Solicitors |
| For the prosecution | Mr D A Trapnell SC | Office of Public Prosecutions |
| For the accused | Mr N Papas SC | Trish Devlin Lawyers |
HIS HONOUR:
Shayne Robert Neve, you have pleaded guilty to five charges brought by indictment.
More specifically, the charges are specified in the particulars and statement of offence as follows:
CHARGE 1 The Director of Public Prosecutions charges that SHAYNE ROBERT NEVE at Strathmerton in Victoria on the 7th day of April 2012 intentionally and without lawful excuse destroyed a dog belonging to DEBHRINA CHRISTIN FULLER.
Statement of Offence – Criminal Damage contrary to s 197(1) of the Crimes Act 1958.
CHARGE 2 The Director of Public Prosecutions charges that SHAYNE ROBERT NEVE at Strathmerton in Victoria on the 7th day of April 2012 without lawful excuse made to DEBHRINA CHRISTIN FULLER a threat to kill DEBHRINA CHRISTIN FULLER intending that DEBHRINA CHRISTIN FULLER would fear that the said threat would be carried out or being reckless as to whether or not DEBHRINA CHRISTIN FULLER would fear that the said threat would be carried out.
Statement of Offence – Make Threat to Kill contrary to s 20 of the Crimes Act 1958.
CHARGE 3 The Director of Public Prosecutions charges that SHAYNE ROBERT NEVE at Strathmerton in Victoria on the 7th day of April 2012 on an occasion other than that referred to in charge 2 without lawful excuse made to DEBHRINA CHRISTIN FULLER a threat to kill DEBHRINA CHRISTIN FULLER intending that DEBHRINA CHRISTIN FULLER would fear that the said threat would be carried out or being reckless as to whether or not DEBHRINA CHRISTIN FULLER would fear that the said threat would be carried out.
Statement of Offence – Make Threat to Kill contrary to s 20 of the Crimes Act 1958.
CHARGE 4 The Director of Public Prosecutions charges that SHAYNE ROBERT NEVE at Strathmerton in Victoria on the 7th day of April 2012 without lawful excuse recklessly engaged in conduct that placed DEBHRINA CHRISTIN FULLER in danger of death in that he aimed a loaded shotgun at her chest at close range and struggled with her for possession of the gun during which struggle both barrels of the gun were discharged.
Statement of Offence – Reckless Conduct Endangering Life contrary to s 22 of the Crimes Act 1958.
CHARGE 5 The Director of Public Prosecutions charges that SHAYNE ROBERT NEVE at Strathmerton in Victoria on the 7th day of April 2012 without lawful excuse intentionally caused injury to DEBHRINA CHRISTIN FULLER.
Statement of Offence – Intentionally Causing Injury contrary to s 18 of the Crimes Act 1958.
There has been a delay in the pronouncement of this sentence due to the need to supply further evidence in relation to your medical condition and give the prosecution and the defence an opportunity to make submissions about that evidence. The court has now received that evidence and given that opportunity.
According to s 5(1) of the Sentencing Act 1991 (Vic), the only purposes for which I can impose a sentence on you are:
· to punish you to an extent and in a manner which is just in all of the circumstances;
· to deter you and other persons from committing offences of the same or a similar character;
· to establish conditions within which it is considered that your rehabilitation may be facilitated;
· to manifest the denunciation by the court of the criminal conduct in which you engaged;
· to protect the community from you; and
· lastly, a combination of two or more of those purposes.
By s 5(2), in pronouncing sentence, I must have regard to the following circumstances, as relevant in your case:
· the maximum penalty prescribed for the offence;
· current sentencing practices;
· the nature and gravity of the offence;
· your culpability and the degree of your responsibility for the offence;
· the impact of the offence on, and the personal circumstances of, the victims;
· whether you pleaded guilty to the offence;
· your previous good character; and
· the presence of any aggravating or mitigating circumstances.
By s 5(3), I must not impose on you a sentence which is more severe than is necessary to achieve the purpose or purposes for which the sentence is to be imposed.
By s 5(4), I must not impose a sentence of imprisonment unless the purpose or purposes of the sentence cannot be achieved by another kind of sentence. In the present case, an immediate sentence of imprisonment is called for, as the purposes of the sentence cannot be achieved by a sentence of another kind. It was for that reason that, at the plea hearing, I revoked your bail and ordered that you be placed on remand pending this sentence.
The maximum penalty specified in respect of each of these offences is imprisonment for 10 years.
The charges to which you have pleaded guilty could equally have been dealt with in the County Court of Victoria. I make it clear that, whatever is the sentencing court, the same sentencing principles are applicable. You will not receive any greater or lesser sentence because you are being sentenced in this court.
The circumstances of the offending were that the complainant, Debhrina Fuller, and you had been living together for about seven years. You were married in Bali in April 2008. During this period your relationship was marked by numerous arguments over a number of domestic issues.
On Friday 6 April 2012, which was Good Friday, Ms Fuller and you were camping on the Murray River near Strathmerton, when her son Joshua Laity, his girlfriend Chantal Daily and a friend Chris Donnelley visited you. At one stage Joshua and Chris went to their car, whereupon you argued with Ms Fuller about Joshua’s suspected drug use. This also had been a constant bone of contention in your relationship in the past and had led to many arguments.
Ms Fuller asked that you not fight about the situation. You became angry, swore at her and said you were leaving. In order to avoid a fight, Ms Fuller told you to go, whereupon you left in your car. Ms Fuller remonstrated with Joshua and he then left with his friends. Ms Fuller continued fishing alone. After about an hour and a half Ms Fuller telephoned a work colleague, who came and picked her up and drove her to her home in Strathmerton.
When she arrived home, you were drunk and abusive towards her. Ms Fuller went to bed and placed a bar stool against the bedroom door to prevent you entering the room. In the past when you had been affected by alcohol, you had become violent towards her and had hit her on a number of occasions.
About ten minutes later, you started banging on the bedroom door and continued banging until the bar stool was dislodged. You entered the room, picked up the bar stool and threatened to smash the window. Things eventually calmed down. You left the room and Ms Fuller re-barricaded the bedroom door with a four-poster bed. You tried to enter the bedroom a few more times and then Ms Fuller heard you drive off in your car.
At about 8.00 am the next morning, Saturday 7 April 2012, Ms Fuller heard you return home, have a shower and leave in your car. She left the bedroom, had a shower and went shopping, returning home at about 11.00 am. She rang you and gauged that you were still angry with her because you swore at her on the telephone.
At 12.30 pm Ms Fuller left home in her car, picked up her employer and his wife and travelled to Tocumwal for lunch, as had been previously arranged.
In the meantime, at about 1.15 pm, you borrowed a double barrel shotgun from a friend, Graeme Jenvey, which you said was for shooting ducks. Mr Jenvey also gave you a full box of 25 shotgun cartridges. This box of cartridges was later found by police in your shed at Bourchiers Road. It had been opened and three cartridges were missing from the box. The shotgun matches the description of the one later recovered by police from Ms Fuller.
Ms Fuller left Tocumwal about 4.30 pm to return home, dropping her employer and his wife off on the way. She arrived home at about 5.00 pm. You were sitting on the back veranda drinking. You told her to ‘fuck off’ or words to that effect. She ignored you and went inside the house.
She telephoned her son Ryan Laity. While she was on the telephone talking to him, you came in and asked her if she could come out and talk about what was going on. You asked her to whom she was talking on the telephone and she told you that she was speaking to Ryan. You walked off and said: ‘Fine, we’ll do it my way then’.
Ms Fuller then heard a loud bang. Her son Ryan heard the sound over the telephone and asked what it was. Ms Fuller told him that she did not know. It later transpired that the noise was that of you fatally shooting her dog Frank with a shotgun in the backyard of your home. You have never been able to explain why you did so as you were very fond of the dog. However, I am sure you knew how hurt and distressed Ms Fuller would be in consequence.
A discharged 12 gauge shotgun shell was found later by detective senior constable Neal Thompson on a workbench in your shed. This is the shell you used when you shot the dog.
A veterinary surgeon, Dr Catherine Sutton, conducted an autopsy on the dog’s body and removed a plastic wad and pellets, which were later identified by senior constable Belinda Howard, a firearm and tool-mark examiner, as being consistent with having been fired from a 12 gauge shotgun.
Your conduct in shooting Ms Fuller’s dog gives rise to charge 1 in the indictment, causing criminal damage. Of course Frank, as the family pet, meant much more to her than mere property.
After Ms Fuller heard the shot being fired, she got up and looked out the kitchen window and saw you walking towards the glass sliding doors of the house with a shotgun in your hand. After shooting the dog, you had returned to the shed and reloaded the shotgun with a fresh cartridge so that both barrels were now loaded.
Ms Fuller told Ryan that you had a shotgun and asked Ryan to telephone the police. She then ran out of the house through the laundry door. She was trying to get out to the road. Her home being in a relatively isolated location, she decided to run to the road and try to flag down a passing motorist. She remained on the telephone to Ryan.
Ms Fuller started running down the driveway towards Bourchiers Road. You ran after her and she was terrified and fearful for her life. She just kept running and was screaming into the telephone for Ryan to ring the police. She reached the road and started running down the middle of the road towards Strathmerton. You were behind her with the shotgun. You were running after her along the road yelling. You were saying words to the effect of: ‘You’ve done it this time. I’m going to fucking kill you … You’re fucked’. This threat gives rise to charge 2 in the indictment, making a threat to kill.
Ryan says he heard you say: ‘There’s another one in here for you, you fucking bitch’ and he heard his mother say: ‘Shayne, put the gun down’. She said this about three times. His mother told him to call the police and then she rang off. Ryan immediately rang 000 and reported the matter to police.
Ms Fuller ran about 20 metres and looked back at you. You were pointing the shotgun at her. Realising that she could not outrun the blast of the shotgun if it were discharged, she turned to face you. She said: ‘It’s OK Shayne. We’ll work this out’. She told you she loved you and that it was all her fault.
You continued walking towards her holding the shotgun at about waist height. You had it pointed directly at her. You said: ‘You didn’t think I’d do it did you? I told you I would. You and your boys are fucked’. According to Ms Fuller, you were referring to other occasions when you had threatened to shoot her. You had previously told her that you had a shotgun and you were going to use it to kill her.
By this time you were very near Ms Fuller and the barrel of the shotgun was within her arm’s reach. She continued negotiating with you and kept telling you that it was all her fault and that you were right. You said that you didn’t care and that you had told her that you were going to do it, and that you were doing it.
Ms Fuller saw that you had your finger on the trigger and that you were in a position to shoot. By this time the barrel was pointed directly at her chest and about 30 centimetres away from her. Your finger was on the trigger and you had a firm hold on the shotgun. Ms Fuller grabbed the end of the barrel with her right hand and pushed it upwards and at the same time with her left hand she pushed your finger down on the trigger in an attempt to discharge the shotgun away from her. This plan worked and the shotgun discharged to her right and above her. Because she had heard the first shot that had killed the dog, and knowing that the shotgun was a double barrel shotgun, she assumed both chambers were now empty. She was deciding whether to let go of the shotgun and start running again when you started laughing. You said: ‘Ha ha. I’ve got another one in there for you’. This threat gives rise to charge 3 in the indictment, a charge of making a threat to kill.
Consequently, Ms Fuller decided not to let go of the shotgun. By this time the shotgun had turned sideways and Ms Fuller and you both had your hands on it. Ms Fuller was trying to prevent you pointing it towards her. She tried to repeat the same action to make the shotgun discharge. She pushed your finger down again and the shotgun discharged again.
This conduct on your part gives rise to charge 4 in the indictment, engaging in reckless conduct endangering life. But for the actions Ms Fuller took to protect herself, she may well have been killed. You accept that this is a serious example of this offence.
After the shotgun discharged on the second occasion, you held it with one hand and started repeatedly punching Ms Fuller to the head and face. You pushed her backwards onto the ground. You were on top of her with the shotgun between you. Ms Fuller was determined not to let go of the shotgun for fear that you would reload it. You were sitting on her and you kept punching her around the head. The prosecution alleges that you struck her between 10 to 20 times to the head and chest. You do not have a clear recollection of sitting on top of Ms Fuller and punching her to the head. You do concede that you punched her and I am satisfied that you did so at least several times. Whether it was several, 10 or 20 is not to the point. Ms Fuller’s injuries are consistent with you punching her and thereby intentionally causing her injury, though not serious injury.
Ms Fuller then heard a car coming from the direction of the Murray River, heading towards Strathmerton. She and you were still struggling on the ground at this stage. Ms Fuller was trying to wave one arm and her legs to attract the driver’s attention. When the car drove past, you started laughing and said: ‘That didn’t work, did it?’ You then tried to get your hand into your pocket, telling Ms Fuller that you had more cartridges. You alternated between trying to get your hand into your pocket and punching Ms Fuller in the head. Ms Fuller felt as though she was drifting into unconsciousness. She then heard another car approaching and thought that this was her last chance to escape. Somehow she had the strength to push you away using the shotgun as a lever and managed to get to her feet. Your conduct in repeatedly punching Ms Fuller gives rise to charge 5 in the indictment, causing injury intentionally.
By this time Ms Fuller and you were standing and both still had your hands on the shotgun. Ms Fuller was pushing forward to get to the middle of the road and attract the attention of the driver of the approaching car, which stopped to assist. She considered it was still not safe to release her grip on the shotgun, so she started running towards the car, simultaneously dragging you with her. She ran to the passenger door of the car, which was being driven by Anthony Parker.
Ms Fuller jumped into the front passenger seat with the shotgun and told Mr Parker to lock the doors and call the police. You were still standing in the middle of the road. Mr Parker drove about two kilometres to the end of the road, pulled over and called 000. Mr Parker was driving alone and in a vulnerable position himself. Ms Fuller was being beaten by you, a man with a shotgun, on a deserted country road. Risking his own safety and wellbeing, Mr Parker heroically rescued Ms Fuller. I strongly commend Mr Parker for the exceptional bravery which he displayed in the circumstances. He deserves the immense gratitude and admiration of the community.
Some of the argument between you and Ms Fuller was overheard by a neighbour, Ian Newell, who was out checking his irrigation equipment at the time. He heard you say: ‘I fucking told you’ and Ms Fuller say ‘No, no’. Immediately after this he heard the two shots fired in quick succession.
Mr Newell rang a neighbour, Mick Ryan, and told him what he had heard. Mr Newell and Mr Ryan arranged to meet at a shed near your house in order to ascertain what had occurred. While waiting for Mr Ryan to arrive, Mr Newell had a conversation with you in which you claimed that you had been shooting ducks.
At the end of Bourchiers Road, Ms Fuller and Mr Parker sat in the car awaiting the arrival of police. At about 5.43 pm, leading senior constable Ted Graham and senior constable Christopher Westrope attended at that location. Senior constable Westrope took possession of the shotgun. He cleared the shotgun and ejected two spent cartridges, which he retained for expert forensic examination, and then secured the firearm.
By this stage Ms Fuller was complaining of a headache. Leading senior constable Graham arranged for an ambulance to meet them at the Cobram police station, where she was examined by ambulance officers and taken by ambulance to the Goulburn Valley Hospital. There she was examined in the emergency department by a medial practitioner who noted that she had some facial injuries including bruising to the left forehead and the left side of her face, scratches to the chest area, soreness of her left shoulder and she felt dizzy. She was given some medication to relieve pain and remained at the hospital for about four hours. Ms Fuller describes her injuries as being lumps all over her head and soreness to her face, her left ear, her neck, back and chest.
Acting sergeant Ron Willis and other police attended at 142 Bourchiers Road, Strathmerton at about 6.00 pm and took you into custody. You were taken to the Cobram police station and later interviewed by the informant, detective senior constable Neal Thompson, and detective senior sergeant Barry McIntosh.
In the record of interview, you said you remembered arguing with your wife over Joshua’s alleged drug habit the day before (Good Friday), going home alone and your wife arriving home later that evening. You admitted that on the Saturday you borrowed a shotgun from a friend called ‘Neil Jamry’ (Graeme Jenvey’s son), which you claimed was ‘to go duck shooting’. You said you remembered Ms Fuller arriving home from a lunch with her boss. You admitted retrieving the shotgun from your shed, where the shells were also kept. You admitted shooting the dog, but offered no real reason as to why you did so. You said that you ‘just lost the plot’ and ‘[i]t’s just been a build-up of a lot of pressure over years and stuff’. You admitted asking a friend, Phillip Ross-Soden to dispose of the dog’s body and told Ross-Soden that you had ‘fucked up’.
You said that you did not have a clear recollection of arguing with your wife on the Saturday. But you did recall shooting the dog and chasing Ms Fuller towards the road while you were armed with the shotgun. You said you did not remember threatening to kill Ms Fuller but said you possibly could have, because you had threatened to kill her a lot over the years. You said you did not remember struggling over the shotgun with Ms Fuller, but you did not dispute her version of events.
You admitted punching and hitting Ms Fuller to the head. You said you did this out of anger and ‘just build up of the shit’. You remembered that she obtained possession of the firearm and ran up the road, and that you chased after her and then went back home.
Following the completion of the record of interview, your hands and the sleeves of the jacket you were wearing were sampled by Peter Ross, a forensic services officer, for evidence of gunshot residues. In his opinion, particles that were highly characteristic of gunshot residues were detected on the back and palm of your right hand, the palm of your left hand and both sleeves of your jacket.
Senior constable Belinda Howard, an expert firearm and tool-mark examiner, examined the fired shotgun cartridge found on the bench in your shed by acting sergeant Willis, the two fired cartridges removed by senior constable Westrope from the breach of the shotgun recovered by him from Mr Parker’s car, the box of shotgun cartridges found by detective senior constable Thompson on a shelf in your shed and the shotgun itself. In her opinion, the three fired cartridges are 12 gauge Winchester brand shotgun cartridges which are reloads, as are the 22 unfired cartridges contained in the box found on the shelf. The shotgun is a 12 gauge Baikal brand model 27 under and over shotgun. There were deposits of partly burnt grains of powder visible in both barrels. The safety catch of the firearm was effective and the only manner in which senior constable Howard was able to discharge the shotgun was by applying pressure to the triggers.
Ms Fuller has provided a victim impact statement to the court which explains in a very moving way the impact of this ordeal upon her. Throughout this ordeal, she was terrified for her life and truly thought that you were going to kill her. In the circumstances, having that thought is completely understandable, although I am sentencing you on the basis that it was not your intention. Ms Fuller explained that, for her, Easter has changed forever. The terror which she experienced is etched and burnt into her consciousness. She is very grateful to the ‘brave guy’ (Mr Parker) who stopped and helped her. She never feels safe now and lives in a constant state of trepidation. She remembers the indignity of the police taking her clothes, including her underwear. She cannot bear to think about the death of her beloved dog, Frank, who would never hurt anyone. She may seem determined and persistent on the outside but it is very different on the inside. For example, she still goes to work, but she is tearful and has flashbacks to the terror which she felt and also has bad dreams at night. She gets exhausted by the constant fight with her memories, feelings and fears. I must note with admiration that, despite all of this, Ms Fuller states that she is alive, for which she is very grateful.
In her additional police statement, Ms Fuller described your propensity towards volatile behaviour, to making threats to kill her and to engaging in ‘not so much physical abuse as … mental abuse’. Your counsel submitted that the relationship was volatile on both sides. Even if this were so, it would not in any way excuse the crimes which you committed against her or mitigate your sentence in any way.
I note that you were arrested and taken into custody on 7 April 2012, the day of the events. You were remanded in custody until you were granted bail on 7 May 2012. You were released on that bail on 9 May 2012.
You were born on 29 January 1962 and are aged 51 years. You have no previous convictions and were previously of good character. It is unusual for a person of your mature age and blameless record to commit such serious crimes. Some insight into why you did so is provided by the medical evidence.
Tony Jago is a consultant psychologist. He interviewed and assessed you in the police cells in Wangaratta in April 2012. After describing your social and medical history, Mr Jago said he found that there was no evidence of mental illness, that you were not antisocial and that you had no criminal tendencies. Your perceptions were normal, as was your capacity for judgment You were alcohol dependent and had been so for many years, although this was in remission due to the remand custody. You also had a significant pain disorder associated with a severe and chronic back injury. You were a long term user of cannabis, which you used for pain management. Mr Jago said you were at no risk of reoffending and would likely return to normal personal and social functioning.
Julian Fidge is a general practitioner and pharmacologist who examined you for assessment of your mental health. After describing your medical history and medication (including zolpidem (Stilnox) for insomnia for several years), Dr Fidge said you had been an alcoholic. The combination of alcohol and zolpidem had resulted in an anterograde amnesia and unusual and potentially dangerous behaviour. Your bizarre and dangerous behaviour on the day of the offending was ‘an iatrogenic psychosis’, that is a psychosis associated with the medical over-prescription of zolpidem combined with alcohol. He saw you as being the victim of alarmingly poor medical practice. He commented adversely on the drugs you had been prescribed, individually and collectively.
After receiving this report, your instructing solicitors very properly investigated your mental health, beginning with Lester Walton, a consultant psychiatrist.
Dr Walton examined you on 28 August 2012. He reported that you had been suffering from depression for many years. You suffered from multiple physical health problems, especially a back injury and chronic back pain. You took prescribed multiple psychotropic medication of which there was no pattern of abuse. You were substance-dependent and alcohol was the relevant substance. You had no obvious cognitive deficit, were of normal intelligence and had no psychotic features.
Dr Walton had Dr Fidge’s report on which he commented. He did not agree that zolpidem had promoted your aggressive behaviour on the day concerned. There was no need to move beyond the well-recognised aggression disinhibiting effects of alcohol, especially in combination with sedating medications. He expressed this opinion as to the cause of your out-of-character behaviour:
Mr Neve remains thoroughly confused and perplexed as to why he may have killed the family dog, for whom he had considerable affection, and then turned upon his spouse, as nothing particularly unusual had provoked him. From my perspective Mr Neve was likely giving vent to pent-up feelings of frustration and anger mainly surrounding his drug-abusing step-children. The psychological pressure cooker finally exploded in the context of Mr Neve being disinhibited with alcohol and prescribed medication. He was not so intoxicated so as to have a defence of automatism available to him and neither do there seem to be any other identifiable mental state defences. The background of chronic depression related to his pain also has some relevance, it being well recognised that mood disorder can also erode a person’s capacity to consistently exercise proper social judgement. Ultimately there was a fairly toxic combination of psychiatric disorder, prescribed drugs and alcohol.
Dr Walton went on to say that, due to your chronic pain and long-term depression, you would endure imprisonment more onerously than others (which I take into account as a factor in mitigation). He said there was little need for specific deterrence. You needed treatment and rehabilitation, which you were undertaking.
Your solicitors also referred your case to Danny Sullivan, a consultant forensic psychiatrist. Dr Sullivan was asked to report on the potential association between zolpidem and disordered behaviour. He never met with you but was given a full documentary history of the offending and your medical condition (including your medication).
Dr Sullivan noted that you had been drinking throughout the day of the offending and possibly had been taking prescription medication, including zolpidem, alprazolam and oxazepam, which may interact with alcohol. He said that any of these drugs or alcohol could be associated with disinhibited behaviour, aggression and amnesia. Of zolpidem, he said that it was not associated with any increased rate of adverse events compared to other benzodiazepines and such events were not likely within the normal dose.
Wayne Atkinson is an alcohol and drug counsellor at La Trobe Community Mental Health Service. To your credit, you have attended this service very regularly indeed for drug and alcohol counselling in 2012 and 2013 whilst on bail in respect of the offending. Mr Atkinson reports that, through this treatment, you have developed ‘recovery capital’ with abstinence from prescription drugs to which you were addicted, with only responsible drinking of alcohol, with management of anxiety and with attending at a doctor and psychologist (Ms Lynette Howell) for medical and psychological treatment. I infer from this report that, through the assistance of this service and your own endeavours, you have developed significant insight into your offending.
At your plea hearing, the court was informed by your counsel that you had recently been diagnosed with a subdural haematoma, as revealed by a CT scan of your brain. After you were remanded pending sentence, a report from a locum medical officer (which I will have marked as an exhibit) was provided to the court on the further investigation of your condition. The report states that you are neurologically intact with no obvious deficits or abnormal presentation. There was no need for urgent follow up or treatment and your condition would be managed.
The prosecution submitted in aggravation that you had cause to believe that you might well act in the way that you did when taking your medication and abusing alcohol and went ahead anyway. Having considered the evidence, I do not think the evidence permits me to make that finding, certainly not beyond reasonable doubt. On the evidence, I accept that you were taking prescription medication on the day of the offending which, in combination with an excessive quantity of alcohol, helps to explain why you behaved so violently. But I do not think that your intoxication from alcohol and prescription drugs was reckless. On the other hand, being voluntary, it does not reduce your moral culpability. In the end, the contribution which the legitimate use of prescription medication and the abuse of alcohol made to your offending is a neutral consideration, neither operating in mitigation nor in aggravation.
Your personal circumstances are that you are the child of adoptive parents. After they separated, you lived with your adoptive father and your step-mother. Due to conflict with your step-mother, you ran away from that home when aged 12-14 years and worked on a farm for board and lodging. Your adoptive step-father kept an eye on you. You developed a good relationship with him and his death was a significant loss. Your relationship with your step-mother improved. She too has died.
Your were educated to year 10 and qualified as a diesel and petrol engine motor mechanic. You have had an industrious working life, with ups and downs.
You have been twice married, the first ending in divorce. You have two adult children by that relationship. You married Ms Fuller some five years ago, having lived together for some years before that. You accept that your relationship with her has also ended. You have some family support. I note in your favour that your sister and niece attended your plea hearing, at their insistence not your request.
After you were granted bail and as required by the conditions, you attended Odyssey House for one month. After that, you moved to Warragul where you received drug and alcohol counselling, and medical treatment, which Mr Atkinson has described. I accept your counsel’s submission that your post-offence conduct is one of a genuine commitment to rehabilitation.
Denunciation of your crimes and general deterrence are powerful sentencing considerations in your case, leading to an immediate sentence of imprisonment. Ms Fuller was your wife. You are guilty of committing appalling domestic violence towards her. Many of your actions were not only violent but calculated to belittle and demean her and place her in abject fear. The double barrel shotgun was a common feature of all five charges and it was loaded when the first four offences were committed. This criminal conduct deserves the strongest condemnation of the court. Others must be made to appreciate the consequences of committing crimes of this nature.
On the other hand, I accept that you have expressed full and sincere remorse from a very early stage, beginning with the police on the day of the offending. All the medical and psychological reports speak of the strong degree of your remorse and your appreciation of the appalling criminal manner in which you treated your wife. Through your counsel, you have accepted that this is a bad case with terrible consequences for Ms Fuller. You stated that you respected, admired and loved your wife and are devastated by your actions towards her. You pleaded guilty at the first reasonable opportunity to those offences of which you considered yourself to be guilty. That plea was accepted by the prosecution. Those offences, and those offences only, are the offences for which you are here being sentenced.
Although each of the offences involved separate actions and threats, it is necessary to take into account that those actions and threats took place in the course of a single course of criminal conduct which was directed towards the one victim, Ms Fuller, within a specific period of time and in the same general location. According to the applicable sentencing principles, this consideration must be reflected in the total sentence to be imposed, which must result in a total effective sentence which is just in the overall circumstances. I accept the submission of counsel for the prosecution that this is best achieved by making a proportionate sentence in respect of each offence and then making appropriate orders for concurrency and cumulation (stepping back at the end to ensure that the total effective sentence is just in all the circumstances).
In relation to the charge of criminal damage (charge 1), yours is a serious example of this crime. The property concerned was Frank, Ms Fuller’s beloved dog. I infer from the circumstances that you killed the dog to inflict severe hurt and suffering on Ms Fuller, which she did and does feel. I accept the submission of your counsel that in normal circumstances a first-time offender, such as yourself, would not be given a sentence of imprisonment for this kind of offence. But the circumstances of your killing of the dog make such a sentence warranted, especially having regard to denunciation and general deterrence. It should not be fully concurrent as is counts materially and individually in the criminality of your conduct and the suffering of the victim.
In relation to the two charges of threatening to kill (charges 2 and 3), I take into account that you first reloaded the shotgun. Then you made the threats on two separate occasions when you and Ms Fuller were virtually alone on a country road with little passing traffic. She was defenceless against your vastly superior physical strength and you had a loaded double barrel shotgun which was pointed towards her. As you well knew, the impact of the threats upon her was made all the greater by the fact that you had the immediate means of carrying them out, even though it was not your actual intention to do so. In respect of the second threat, you fall to be sentenced as a serious violent offender and protection of the community becomes the main sentencing consideration. The presumption of concurrency becomes a presumption of cumulation. As it happens, I do not consider that the community is in need of specific protection from you. I consider that there should be a measure of cumulation (rather than full concurrency) for the sentence to be imposed in respect of the second threat, given what you said and did in making it. But, despite the presumption of full cumulation, I think the measure of cumulation should be less, and the measure of concurrency more, than in the case of the sentence for the first threat, taking into account that the second threat was made soon after, and in nearly the same place as, the first threat, during a continuing course of conduct.
In relation to the charge of reckless conduct endangering life (charge 4), yours is a serious example of this crime and it is clearly the most serious of the offences which you committed. Struggling with Ms Fuller over the loaded double barrel shotgun seriously imperilled her life. You subjected her to a horrible ordeal. She was terrified and genuinely feared for her life. The lasting effects on her have been terrible. In the gravity of the offending, I take into account, however, that you did not, as in some other serious cases, actually shoot the shotgun towards Ms Fuller and that it was discharged in the course of her defensive actions.
In relation to the charge of intentionally causing injury (charge 5), like charge 1, this charge would not generally warrant an immediate sentence of imprisonment for an offender of your age and antecedents. However, I consider that your offence does warrant such a sentence because of the circumstances and the consequences for the victim. In essence, after everything else that you said and did, you subjected Ms Fuller to at least several violent blows during which she was on the ground and you were on top of her. She almost lost consciousness and you inflicted injuries upon her, which I have described. I take into account, however, that you did not so badly strike her that she was unable to escape from your blows and get away with Mr Parker’s assistance. This sentence should be substantially concurrent with the head sentence, but not fully so as it too counts materially and individually in the criminality of your conduct and the suffering of the victim.
In all of the circumstances, on charge 1 in the indictment, criminal damage, you will be sentenced to imprisonment for 3 months.
On charge 2 in the indictment, making a threat to kill, you will be sentenced to imprisonment for 12 months.
On charge 3 in the indictment, making a threat to kill, you will be sentenced to imprisonment for 12 months.
On charge 4 in the indictment, reckless conduct endangering life, you will be sentenced to imprisonment for 3 years.
On charge 5 in the indictment, intentionally causing injury, you will be sentenced to imprisonment for 6 months.
Pursuant to s 16(1) of the Sentencing Act, I direct that 1 month of the sentence of imprisonment imposed under charge 1, 6 months of the sentence of imprisonment imposed under charge 2, 3 months of the sentence of imprisonment imposed under charge 3 and 2 months of the sentence of imprisonment imposed under charge 5 is to be served cumulatively upon the sentence of imprisonment under charge 4 and each other, making a total effective sentence of imprisonment for 4 years. I direct that you serve a minimum term of imprisonment for 2 and a half years before being eligible for parole.
Pursuant to s 6AAA(2), I state that, but for your plea of guilty, I would have imposed a total effective sentence of imprisonment for 6 and a half years with a non-parole period of 4 and a half years.
In respect of charge 3, an entry will be made in the records of the court in accordance with s 6F(1).
There are 140 days of pre-sentence detention to be taken into account in determining the length of your sentence.
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