Director of Public Prosecutions v Price
[2022] VSC 380
•10 June 2022
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0208
DIRECTOR OF PUBLIC PROSECUTIONS Crown v CRAIG PRICE Accused ---
JUDGE:
Champion J
WHERE HELD:
Ballarat
DATE OF HEARING:
9 May 2022
DATE OF SENTENCE:
10 June 2022
CASE MAY BE CITED AS:
DPP v Price
MEDIUM NEUTRAL CITATION:
[2022] VSC 380
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CRIMINAL LAW — Sentencing – Recklessly causing serious injury in circumstances of gross violence – Prohibited person carrying a firearm – Possessing cartridge ammunition – Significant childhood deprivation – Diagnoses including PTSD, schizophrenia, severe intellectual disability – Methylamphetamine use – Verdins – Bugmy – Guilty plea – Serious brain and facial injuries suffered by victim – Impact on victims – Category 1 implications – Gross violence provisions – Total effective sentence of six years and six months’ imprisonment with non-parole period of four years – Sentencing Act 1991 (Vic) s 10, s 10A, s 18, s 6AAA.
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APPEARANCES:
Counsel Solicitors For the Crown Ms E Ramsay Office of Public Prosecutions For the Accused Mr L Hartnett Papa Hughes Lawyers HIS HONOUR:
Introduction
1 Craig Price, on 11 February 2022 you pleaded guilty to one charge of recklessly causing serious injury to [Redacted] in circumstances of gross violence and to one charge that you were a prohibited person carrying a firearm on the day of your offending. You shot [Redacted] in the head on 20 April 2020. The circumstances of gross violence are that you planned in advance to have with you and to use a firearm when you shot [Redacted], and that you used the firearm to cause the serious injury.
2 You have also pleaded guilty to one related summary offence of possessing ammunition contrary to s 124 of the Firearms Act1996 (Vic).
3 The maximum penalty for the offence of recklessly causing serious injury in circumstances of gross violence, contrary to s 15B of the Crimes Act 1958, is 15 years’ imprisonment, and for the offence of being a prohibited person carrying a firearm, contrary to s 5(1) of the Firearms Act 1996, the maximum penalty is 1200 penalty units or 10 years’ imprisonment. The maximum penalty for possession of cartridge ammunition, contrary to s 124(1) of the Firearms Act 1996, is 40 penalty units.
Circumstances of the offending
Background to the offending
4 You were 49 years old at the time of your offending and you lived in Ballarat East. You were previously married to Rebecca Stratton, and had two children together.
5 Your victim, [Redacted], was 25 years old at the time you shot him. He lived in Clover Street, Wendouree, with two housemates. One of his housemates was Josh Stratton, the brother of your former wife.
6 You and [Redacted] had known each other for about ten years at the time of the shooting. It appears that you disliked [Redacted] and were acting out towards him in the days before the shooting.
7 Two days before the shooting an altercation occurred as a result of which you rammed a vehicle driven by [Redacted] with your vehicle. You drove away. When police spoke to you later that day, they inspected your car which had damage to the front driver’s door and rear bumper area. You told police you had driven backwards in your car with the door open and smashed into a fence. You also told police that you disliked [Redacted] as he had teased you about an earlier assault. You said you would like to ‘fix them up’, meaning [Redacted], and another person. However, you then told police you were only joking. Police later viewed CCTV of the driving incident which showed your vehicle reversing out of a driveway at high speed and colliding with the vehicle then driven by [Redacted].
8 The following day [Redacted] told your former partner, Rebecca Stratton, about you sending him threatening messages. The messages included threats to rape [Redacted]’s mother and asking [Redacted] to come to your house so you could ‘fuck him’. [Redacted] showed Rebecca a number of the messages.
9 In the lead-up to the shooting you were already in possession of a gun. The make and model are unknown. In the weeks before the shooting Rebecca Stratton was told by her son that ‘dad has ammo and a gun’. On 19 March 2022, you visited Jennifer Stratton, Rebecca’s mother, and showed her a gun that looked ‘like it was sawn off’ and had ‘pointy’ bullets.
The events of 20 April 2020
10 On 20 April 2020, shortly before the shooting, you visited one of your children, telling them, ‘I might be going away for a while, I love you mate’, before driving away.
11 You then drove to [Redacted]’s house in Clover Street, Wendouree. [Redacted] was home with his friends, Joshua Stratton, Shanoah Nimon, Jamie Wheadon, Sharron Ellis, and Riley Green.
12 Joshua Stratton said he heard a car pull up to the house and a male voice yell out ‘Jayde’. He says [Redacted] called out ‘come inside’ to which the male voice responded ‘No you come here’.
13 Ms Nimon said she could hear someone yelling at the front of the house. Jamie Wheadon went to the front of the house where she saw you parked on the road, across the driveway. You were sitting in the car. Ms Wheadon went inside and told [Redacted] it was you outside. [Redacted] asked what you wanted and went outside.
14 Ms Wheadon watched through a window as [Redacted] walked down the driveway and approached your car. She said there was a ‘bang’ and she ran outside where [Redacted] was grabbing his face. She saw [Redacted] had been shot and there was ‘blood and a hole in his face’.
15 Mr Stratton also watched [Redacted] walk outside towards the driveway before hearing a ‘bang’, which he knew was a gunshot. He also ran outside to see [Redacted] had been shot.
16 The incident was also overheard by a woman on the street, Mikaela Lambert. Ms Lambert heard a ‘bang’ then saw a black hatchback car coming from Clover Street. She could see the driver through the open car window.
17 The exact distance you were from [Redacted] when you shot him is not clear. You remained in the driver’s seat of the car the entire time. [Redacted] had left the house on your left side and approached the car. He was in the vicinity of the letterbox of his house when he was shot. You would have had to hold the gun across your body to fire through the open passenger window and across the nature strip at a distance of about six to eight meters.
18 The second charge on the indictment is made up of your possession of the firearm whilst a prohibited person.
Medical information
19 After being shot, [Redacted] was taken to the Royal Melbourne Hospital. Examinations revealed he had suffered a discrete gunshot wound through the back part of his left cheek, with the bullet exiting through the front part of his right cheek. There was extensive tissue injury along the path taken by the bullet, which shed multiple shards of bullet fragments, as well as fractures to the upper and lower jaw, teeth, left cheek bones, left eye socket, nasal bones, and floor of the skull. There was also air within his skull and bruising and swelling of his brain.
20 He was discharged from hospital on 18 May 2020 but had to be readmitted a few days later as he had suffered seizures due to the brain injury.
21 [Redacted] underwent multiple plastic and reconstructive surgeries to repair the damage. There was skin loss over the face and disruption to the bones around the nose and floors of the eye sockets. His injuries have resulted in substantial disfigurement, interfere with his sight and smell, and make eating problematic. The injuries I have just described amount to the serious injury detailed in Charge 1 on the indictment.
The police investigation
22 You were arrested in Melton later the same day. Your car was seized, in addition to five .22 calibre bullets. A search of your home located a single round of 30:30 calibre ammunition and bullet fragments consistent with a .30 calibre firearm. The ammunition that was found is the basis for the summary charge of possessing ammunition.
23 You told police where you had disposed of the gun used in the offence however it was not recovered during a search of the area. It remains unaccounted for.
Procedural history
24 When arrested you were originally charged with attempted murder and a series of related offences. A contested committal hearing was held in 2021. In October 2021, a trial indictment was filed in this Court alleging offences of attempted murder and various related alleged offences. The matter resolved with a plea indictment filed on 10 February 2022, alleging the two charges to which you have now pleaded guilty.
Victim Impact Statements
25 I note that [Redacted] did not file a victim impact statement in this matter. In his police statement he said he cannot remember what happened on the day he was shot. He said when he woke up in hospital his face was ‘really sore’ and his ‘whole face has changed.’[1]
[1]Depositions page 74.
26 [Redacted]’s mother, [Redacted], did file a victim impact statement. She described how receiving a phone call to say that her son had been shot was her worst nightmare. She described being in shock when she witnessed her son in an induced coma and in a serious condition. She did not know if he was going to survive. She described the difficulty she had in telling her son what had happened, and dealing with his lack of belief and his sense of upset and anger. She described how she was happy that her son had survived, but upset at how he looked now due to the reconstruction of his face. She also described the financial impact on her of having a low income at the time of the events, and her struggle in travelling to Melbourne daily to be with her son in hospital.
27 The Court has been provided with two photographs of [Redacted], the first of which depicts how he looked before he was shot. The second shows his facial features after the shooting. It is fair to remark that the latter shows a significant degree of facial disruption, depicting a young man with distinctly altered facial features. These lifechanging injuries occurred as a direct result of you having shot him.
Personal circumstances
Background
28 You were born in 1970, and are now 52 years old. You experienced significant trauma during your early childhood. You were physically and sexually abused by your father, who also regularly physically assaulted your mother. You were seven years old when your parents separated and your mother began a relationship with your uncle. When at school in grade 2, you were removed from your parents’ care and placed in various boys’ homes. You were sexually abused during your time at Baltara Boys Home, and later, you were sexually abused at Southerland Home in Diamond Creek.
29 You report only attending school to age 12.
30 On occasions, you ran away from the boys’ homes and returned to your mother, but while living with your mother you were physically abused by your uncle.
31 A few years ago, you received a $100,000 compensation payout under the National Redress Scheme for the sexual abuse you suffered as a child at institutions, however, you spent it all within six months of having received it.
32 You have a long history of substance abuse. You began using cannabis at age 12, and injecting amphetamines from 13. You began using heroin when you were 15. You began a methadone program at 18, however, began using drugs again and overdosed at age 25. You were taken to hospital and told you had experienced a stroke, which caused numbness over one side of your body, and you also suffered pericarditis. You stopped using heroin from 1995, but a number of years ago you began using methylamphetamine.
33 At 15 years old you began committing crimes to fund your drug habit. Your criminal history is noted below.
34 You have two older children with whom you have very limited contact. At one point you were married to Rebecca Stratton for seven years, but you separated approximately eight years ago. You have two children together. One of those children has an intellectual disability and autism.
35 For the past ten years, you have received a carer’s allowance from Centrelink to care for your disabled child. At various times your two youngest children have lived with you, however, due to periods of deterioration in your mental health and drug use, they have also lived with their mother for periods.
36 You have a limited work history and scarce detail was provided to the Court, but I note that you worked in the kitchen at Ballarat Grammar for a period of eight months in 2018.
Criminal history
37 You have a number of convictions for past criminal offending. These largely relate to offences of dishonesty, but also included a conviction for armed robbery in 1991, and drug use and driving offences going back to the late 1980s when you were a still a teenager. From time to time you have been sentenced to periods of imprisonment of less than one year however the most common disposition has been a Community Corrections Order or a suspended sentence. I do note that in 2015 you were placed on a 9-month CCO for the offence of possessing a handgun and cartridge ammunition, and also being a prohibited person in possession of a firearm.
38 Your criminal history reflects a person who has battled drug abuse throughout your adult life. Most of your convictions are recorded against you in the summary jurisdiction. It is of some significance that your prior offending is of a very different nature to the current matter before the Court, and that your history does not appear to have reflected that you are a person with a propensity for violence.
39 Along with the nature of the offending before this Court, your past history has relevance to the assessment of the degree to which the community requires protection from you, and I will return to this aspect below.
Physical and mental health
40 Physically, you have diabetes and require insulin each morning. While on remand for these offences you were diagnosed and treated for helicobacter pylori, a bacterial infection of the stomach, as well as esophagitis, an inflammation of the oesophagus. This condition has caused you to vomit most days. You have lost a significant amount of weight while in custody.
41 You suffer from a number of mental health issues which result in a complex presentation. You have been diagnosed by various professionals with complex post-traumatic stress disorder, schizophrenia, a degree of intellectual disability, and neurocognitive disorder due to traumatic brain injury.
42 Two expert reports have been submitted on your behalf in relation to your mental and cognitive health.
43 In relation to your mental health issues prior to your offending, you provided a history of this aspect of your health to a clinical psychologist. You stated that you were using methylamphetamine and that you experienced paranoid thoughts, including that you were being followed by unknown people and drones. You reported telling your mother that you believed people staying near you were watching you, that there were cameras inside your phone watching you, and that there were electronic listening devices in the walls.
44 After your arrest on the present charges your mental health deteriorated and you were ultimately moved to Thomas Embling Hospital under a Secure Treatment Order, having reported delusional thoughts and auditory hallucinations. You were held at Thomas Embling for six months. A report was produced by the Mental Health Tribunal on 16 February 2021. The report noted your ongoing auditory hallucinations and paranoia as well as the treatment you were undergoing at Thomas Embling. A discharge summary from Thomas Embling dated 28 July 2021 notes diagnoses of treatment-resistant schizophrenia, depression, polysubstance use disorder, and an acquired brain injury as a result of a motor vehicle accident. The report detailed the pharmacological and psychiatric care you have received. It also noted that there has been an improvement in your symptoms since being treated with Clozapine.
45 In preparation for these proceedings you were assessed by Mr Mathew Staios, a clinical neuropsychologist, on 4 April 2022. He noted your ’neuropsychological profile and general level of intellectual functioning fell within the borderline to extremely low range of functioning’.[2] He opined that your cognitive abilities would have been affected by your limited formal education; significant periods of substance use, particularly during crucial development periods; periods of psychosis; and an overdose approximately 20 years ago.
[2]Page 6, paragraph 7.1.
46 Mr Staios also noted that when you are acutely intoxicated or psychotic, your cognitive function is likely to be further impacted, making you unable to efficiently monitor your actions and exercise appropriate behaviours. He also noted that your history, including your poor medication compliance, were factors that should have significant consideration regarding your symptoms of schizophrenia leading up to your offending, as well as additional stressors such as the care of your children.
47 Lastly, Mr Staios noted that when you return to the community you will require a moderate degree of support to comply with treatment conditions and engage with care providers, and that you would also benefit from a referral to a clinical psychologist and drug and alcohol support services.
48 In preparation for these proceedings you were also assessed by Ms Alison Mynard, a clinical psychologist, on 30 March and 7 April 2022. In her report, Ms Mynard noted that you reach the diagnostic criteria for complex PTSD, schizophrenia, generalised anxiety disorder with panic, amphetamine-type substance use disorders, severe intellectual disability, and neurocognitive disorder due to traumatic brain injury.
49 Ms Mynard noted that when a child is abused, as you were, emotional, cognitive, and moral developments are significantly delayed. She concluded that you developed severe psychiatric conditions, have used illicit substances in your life, and have continued to suffer from a permanent and life-long condition that existed at the time of your offending.
50 Ms Mynard also opined that:
Mr Price’s judgment in terms of his offending behaviour was grossly impaired, due to a range of complex factors including his schizophrenia, his own history of trauma, his anxiety, his intoxication with substances and his extremely low cognitive functioning.[3]
[3]Page 5, paragraph 29.
51 She noted the impact that your complex PTSD, schizophrenia, cognitive abilities, and drug use would have had on your behaviour at the time of the offending. In her opinion, your complex PTSD would have significantly impacted your perceptual abilities including your threat perception. Further, you would have been in a high state of arousal, hyper vigilant, and behaving with increased risk taking and impulsivity. Your inhibitions would have been lowered and your ability to reason, plan, and make clear and thoughtful decisions would have been affected.
52 Ms Mynard is also of the opinion that your ongoing and permanent mental illness of schizophrenia impacted your offending behaviour and that this illness, with underlying paranoia, was evident at the time of your offending, and led to your actions to shoot your victim to ‘warn him off’. Your conditions would have also resulted in disorganised and confused thinking processes, impairing your judgment and reasoning skills, and reducing your ability to think clearly about the potential consequences of your behaviour.
53 Furthermore, your low cognitive capacity would have impacted your decision making, in that you have a rigid thinking style with limited ability to adapt or consider other options. You would have had a very low ability to use and understand visual information and ability to think in a timely fashion about your own thoughts, urges, paranoia, and intentions. You also have reduced verbal reasoning skills and ability to communicate, and your low cognitive capacity affects your ability to process your own feelings of regret and remorse, and to think clearly about past actions and emotions.
54 Ms Mynard concluded that there are multiple complex factors, as described above and in her report, that contributed to your offending, and that they are chronic and permanent.
55 Ms Mynard believes that you will stabilise in prison with regular medication and monitoring, however, you are at risk of becoming institutionalised. As above, she noted your conditions are chronic and permanent, and will only be reduced in severity with a high level of support and treatment and rehabilitation focus. She recommends a functional assessment to confirm whether you have an intellectual disability, an NDIS review, psychological and psychiatric treatment, as well as alcohol and other drug counselling. She noted that without intensive treatment and support in the community your risk of reoffending is high.
56 She is of the opinion that imprisonment will be more onerous for you than for an individual not suffering from the same mental illnesses and low cognitive functioning. I note that when you were remanded in custody for this offending you were subject to 14 days in isolation as a result of COVID-19 restrictions. Doubtless given your mental health conditions, you found that experience to be onerous.
Submissions for the defence
The offending
57 It is conceded on your behalf that the injuries suffered by [Redacted] are serious, traumatic, and life altering. It was also conceded that yours represents a serious example of this type of offending, aggravated by the fact that you took a gun to the victim’s address and fired it towards him while he stood in his driveway.
58 It was noted that at the time of the offending you were affected by methylamphetamine. At the time of the offending you were holding the shortened rifle across your body and sitting in the driver’s side seat when you fired through the open passenger window of the car in the direction of [Redacted]. While conceding the distance was unclear, Mr Hartnett submitted there may have been as much as 14 metres between you and [Redacted].
Matters in mitigation
59 A number of mitigating factors were noted by Mr Hartnett on your behalf, including:
(a)That you voluntarily told police where you dumped the firearm on the side of a road, though it was ultimately never found.
(b)That you have taken responsibility for your offending, that you reported remorse to the psychologist, Ms Mynard, and recognised the wrongfulness of your behaviour and its impact on [Redacted].
(c)Your plea of guilty has particular benefit as a result of the COVID-19 pandemic and the backlog of trials in the court system and that, as a result, your plea should attract a greater reduction than had it been outside of the pandemic.
60 As to your background, it was submitted that your childhood involved profound deprivation on the basis that:
(a)During your early childhood you were exposed to domestic abuse and molestation at the hands of your father, who you saw assault your mother regularly.
(b)When you were in grade 2 in primary school you were removed from your parents’ care and placed in various boys’ homes, including Baltara Boys Home, where you were sexually abused on many occasions.
(c)You were later moved to Southerland Home in Diamond Creek, where you were sexually abused by someone in charge on two occasions.
(d)When you ran away from the boys’ homes and returned to your mother you were physically abused by your uncle, who was also physically assaulting your mother.
(e)When you were 12 years old you returned to reside with your father to work with him bricklaying. However your father was also abusive and you had little further contact with him.
(f)After being introduced to cannabis at the age of 12, you started injecting amphetamines at the age of 13 and heroin at the age of 15.
61 With reference to your background of hardship, dysfunction, and disadvantage your Counsel submitted that the sentencing principles set out in the High Court case of Bugmyv The Queen[4] (‘Bugmy’) are relevant to you and that these circumstances should be given weight in mitigation of your sentence. In Bugmy, the High Court expressed the potential relevance of childhood deprivation to the assessment of moral culpability as follows:[5]
… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision…
[4]Bugmy v R [2013] HCA 37.
[5]Ibid at [43]-[44].
62 It was acknowledged that your disadvantaged childhood must also be weighed against the need for community protection from serious violent offending.[6] Accordingly, Mr Hartnett submitted that the protection of the community would be best served by a sentence which assisted you to become drug free and linked you to appropriate medical and mental health services with ongoing and appropriate intervention, thus reducing your likelihood of relapsing and reoffending.
[6]Bugmy v R [2013] HCA 37 at [44]. ‘An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender’.
63 Mr Hartnett noted that you received $100,000 compensation for the abuse you suffered as a child, however you described the payout as ‘the worst thing in your life’ because you spent it all in six months on drugs and your family. While careful not to criticise the scheme, Mr Hartnett commented that it was an insufficient sum to allow you to buy a house or a flat and that you were sad that you had wasted the money.
Verdins principles
64 Turning to mental health and cognitive factors, Mr Hartnett submitted that in addition to the Bugmy principles, those set out in R v Verdins[7] must also be applied to your case. In Verdins, the Court of Appeal set out a series of principles which must be considered in formulating an appropriate sentence when an offender presents with impaired mental functioning (‘Verdins principles’).
[7](2007) 16 VR 269 (‘Verdins’).
65 Your Counsel noted a number of matters relevant to your state of mind in the lead up to the offending. These included:
(a)That at your most recent home visit from Ballarat Health Services on 17 March 2020, you reported paranoid thoughts and believed you were being followed by unknown people, police, and drones.
(b)On the weekend prior to the offending you stayed with your mother at a hotel. Your mother reported that during the stay you believed the people had booked the room next door in order to watch you, that there were cameras in your phone which others were using to watch you, and that you attempted to locate listening devices in the walls.
(c)Prior to the shooting there were a series of incidents between [Redacted] and your 16 year old son, involving a stolen car that had taken place in the months leading up to the incident. A few days prior to the shooting you believed [Redacted] had hit your son, however when you reported this matter to the police you were advised they would not take a report. Your son has been diagnosed with autism spectrum disorder and you are very protective of him. Mr Hartnett conceded the narrative leading up to the shooting was confusing and stressed that it was not put before the Court as any type of excuse, but simply to clarify that it was not a spontaneous event arising out of nothing.
66 Mr Hartnett submitted that your diagnosis of complex post-traumatic stress disorder and schizophrenia, coupled with your diagnosis of intellectual disability and neurocognitive disorder, give rise to a number of the Verdins principles which should influence your sentence. Specifically, it was submitted that the following principles applied in your case:[8]
(a)That your impaired mental and intellectual functioning reduce your moral culpability and so affect what is considered to be a just punishment and lessen the need for denunciation (Verdins ‘limb one’).
(b)That the nature and severity of your symptoms and the effect of their impairment at the time of offending may moderate or eliminate general deterrence as a consideration (Verdins ‘limb three’).
(c)That due to your impairment at the time of sentencing or its reasonably foreseeable reoccurrence, a specific sentence may weigh more heavily on you than it would on a person in normal health (Verdins ‘limb five’).
(d)That there is a serious risk that imprisonment will have a significant adverse impact on your mental health and should be a mitigating factor (Verdins ‘limb six’).
[8]Verdins at [32].
67 Regarding the issue of your moral culpability, while it was acknowledged that your mental functioning was complicated by your choice of illicit substances, it was submitted that your offending was best understood through the prism of your severe mental illness. Ms Mynard’s opinion is that your schizophrenia is characterised by underlying paranoia and that this was evident at the time of your offending. She explained that your ability to reason and make clear and thoughtful decisions was affected because you were operating in the ‘survival’ part of your brain, believing that you and your sons were under threat, and that you had to take action to keep them safe.
68 As to general deterrence, it was submitted that your schizophrenia does not make you an appropriate vehicle for general deterrence. The Court was referred to Muldrock v R, in which the High Court referred to the ‘well recognised’[9] principle that:
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.[10]
[9]Muldrock v R (2011) ALR 652 at [53]–[54].
[10]R v Mooney unreported, Victorian Court of Criminal Appeal, 21 June 1978 at 8, cited in R v Anderson [1981] VR 155 at 160-161.
69 As to the additional burden of imprisonment, your Counsel noted that that your mental health has deteriorated during your time in custody, such that a Secure Treatment Order was necessary and your mental health in custody was an ongoing risk. Ms Mynard’s opinion was that you are a vulnerable person in custody who would require ongoing intensive care from psychiatric teams with regard to your mental illness and intellectual disability.
70 In addition to the matters relating to your specific physical and mental health issues, Mr Hartnett submitted that imprisonment during the pandemic has been more burdensome than at other times. You were remanded in custody on 20 April 2020, little over a month after a state of emergency was first announced in Victoria. While on remand you experienced 14 days of isolation when you were first taken to the Melbourne Assessment Prison. You have spent over two years in remand at a time when rehabilitative and other programs within prisons have been severely curtailed. It is noted that you were only able to have your first in-person visit in custody on 17 April 2022, almost two years since you were remanded.
71 You have been moved between a number of different prisons and units, and at the time of your plea hearing you were a resident in the St Paul’s Unit of Port Phillip Prison, which is a specialised unit for mental health. You remain on medication for your mental and physical health. Notwithstanding these challenges, you have tried to keep yourself busy in custody and worked as a cleaner, a food billet, and a floor sweeper.
Gross violence and Category 1 offending
72 Your Counsel addressed the issue of recklessly causing serious injury in circumstances of gross violence being a category 1 offence, requiring the Court to impose a custodial sentence.[11] The Court is also required to impose a minimum non-parole period of 4 years’ imprisonment unless special reasons exist.[12]
[11]Sentencing Act 1991 (Vic), s 5(2G).
[12]Ibid s 10.
73 It was submitted that such an exception arises in your case because:
(a)at the time of the offence you had impaired mental functioning that was causally linked to the commission of the offence and which substantially and materially reduces your culpability;[13] or
(b)your impaired mental functioning would result in you being subject to a substantially and materially greater than the ordinary burden or risk of imprisonment.[14]
[13] Ibid s 10A(2)(c)(i).
[14]Ibid s 10A(2)(c)(ii).
74 In the alternative it was submitted that the Court should find that special reasons exist on the basis that there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.[15] In this regard, Mr Hartnett pointed to a combination of factors including your impaired mental functioning at the time of the offence, decline in mental health while in custody, excellent family support, chronic physical health issues, and traumatic childhood.[16]
[15]Ibid s10A(2)(e).
[16]Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; Peers v The Queen [2021] VSCA 264.
75 Ultimately, Mr Hartnett submitted that you should be sentenced to a term of imprisonment with a non-parole period shorter than 4 years, but with a longer parole period so as to maintain supervision and stability when you are released into the community.
Submissions for the prosecution
Gravity of the offending
76 The Crown submitted that your offending should be regarded as situated at the higher end of the scale in terms of objective gravity of the offence. Factors highlighted by the prosecution as matters of serious concern in your case included the planned use of the firearm, the type of firearm used, the use of a firearm in a residential setting in circumstances where there were eight other persons nearby, and of course the devastating lifelong consequences of your actions upon the life of the victim.
Mitigating factors
77 The prosecution do not dispute your diagnosis of complex post-traumatic stress disorder and schizophrenia. However, the prosecution questioned whether there was sufficient evidence regarding the causal nexus between your mental impairment and the offending, so as to enliven s10A(c)(i) of the Act. The Crown submitted this requires consideration of the Verdins principles, namely whether the impairment had the effect of:[17]
[17]R v Verdins [2007] VSCA 102.
(a)impairing your ability to exercise appropriate judgment;
(b)impairing your ability to make calm and rational choices or to think clearly;
(c)making you disinhibited;
(d)impairing your ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing in a causal way to the commission of the offence.
78 Section 10A(2A) of the Act also makes clear that impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability does not apply if the impaired mental functioning is caused substantially by self-induced intoxication.
79 At the plea hearing, Counsel for the prosecution cross-examined Ms Mynard. Ms Mynard confirmed that you had been using methamphetamine quite significantly in the months leading up to your offending, and it was her evidence that your ice use exacerbated an already existing paranoid and erratic decision-making and behavioural pattern.
80 Ms Mynard agreed that this conclusion was further supported upon examination of your criminal history. It was said that despite the fact that you have been labouring under these mental impairments for most of your life, your criminal history does not demonstrate that you have previously engaged in violent offending of any kind, let alone anything of this gravity.
81 Having regard to the evidence of Ms Mynard in combination with your criminal history, the prosecution submitted that your use of methamphetamine was a substantial cause of the mental impairment that has led to this offending. On this basis, the prosecution submitted that the Court ought not find s10A(c)(i) enlivened in light of the operation of s 10A(2A).[18]
[18]The Act s10A(2A).
82 The prosecution did not dispute that your impaired mental functioning will result in you being subject to greater than the ordinary burden if subjected to a term of imprisonment.[19] Indeed, it was noted in written submissions that there is evidence that your time in custody has already been particularly onerous in the period leading up to your transfer from Thomas Embling Hospital.
[19]Ibid s 10A(2)(c)(ii).
83 Turning to the question of whether there are ‘substantial and compelling circumstances’ in this case sufficient to enliven the operation of s 10A(2)(e), the prosecution correctly characterised the test in this section as a ‘very high hurdle that will not often be surmounted’.[20] As outlined in Hudgson, the wording of this section ‘connotes powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors’.[21]
[20]Farmer v The Queen [2020] VSCA 140 at [51].
[21]Hudgson v The Queen [2016] VSCA 254 at [111]–[112].
84 The Crown submitted that factors relied upon by the defence are often present in offending of this kind and therefore are not ‘substantial and compelling circumstances that are exceptional and rare’ within the meaning of the section.
85 As to the application of the Verdins principles, the prosecution submitted it is open to the Court to find that limbs three and five of Verdins are enlivened on the evidence. That is, it was acknowledged that general deterrence ought to be moderated or eliminated as a sentencing consideration in the circumstances of this case. Further, as above, it was acknowledged that a sentence of imprisonment may weigh more heavily on you than it would on a person in normal health by reason of your mental impairment. However, it was submitted that the sixth limb of Verdins, being the impact of imprisonment upon your mental health, is not enlivened as a consideration in this case, given that you are currently stabilised in St Paul’s unit, a specialised mental health unit run by Forensicare.
86 In written submissions, the prosecution left open the question of how the Court should consider limb one of Verdins in this case, being the effect of your mental impairment on the Court’s assessment of moral culpability and, by extension, just punishment.
87 It was noted in oral submissions that the authorities take a slightly different view on the relevance of drug use in relation to the application of limb one of Verdins, as compared to the application of the equivalent provision in s10A. Consequently, it was conceded by the Crown that on the basis of Ms Mynard’s evidence, it was open to the Court to conclude that limb one of Verdins could apply in this case, given the ‘combination’ of causative factors at play.
88 As to the Bugmy principles, the prosecution do not dispute that it is open to the Court to make findings in accordance with the defence submissions about the application of the principles enunciated in this case.
89 With respect to assistance, guilty plea, and remorse, the prosecution accepts there is some evidence before the Court that on the night of the offending you led police to a location where you said the firearm used in this offending could be located. However, despite extensive searches of that area being conducted by police, the firearm has not been found, and indeed may very well remain at large in the community. Because the firearm was not found, the prosecution do not accept that you have made a genuine attempt to assist police with their investigations in this regard.
90 The prosecution did not seek to make submissions about how the Court should account for this behaviour in sentencing, accepting that it is ‘difficult’ to determine whether or not it was your subjective intention to assist police given your mental state at the relevant time. However, it was not submitted that your conduct should be regarded as a deliberate attempt to deceive police as to the location of the firearm, nor that the Court should regard this as an aggravating circumstance in your offending. Ultimately, the question of how this issue should be resolved was left open to the Court to decide.
91 The Crown did concede that you ought to be given credit for your guilty plea. It was further accepted that you have demonstrated remorse for your actions, as evidenced by the report of Ms Mynard.
Sentencing outcome
92 Whilst it was conceded that there are significant factors in mitigation in this case, the prosecution submitted that the Court should regard the protection of the community from the wanton use of firearms as a paramount consideration.
93 It was submitted that a lengthy and substantial term of imprisonment is the only available sentence for this serious offending, but that in the circumstances it is open to the Court to impose a non-parole period that is shorter than usual. Ultimately, the prosecution conceded that the mandatory non-parole period does not apply because it is ‘open to the court to find that a special reason exists under 20 s10A(c)(ii)’.
Analysis and conclusions
Nature and gravity of the offending
94 Mr Price, you committed very serious offending against [Redacted], who was at the time an unarmed and defenceless man, who was not expecting to be shot. It was a very dangerous act to shoot in his direction, and it must have taken him by surprise when he was shot. Considered overall, yours is a serious example of this kind of reckless offending and it was reckless to a significant degree. You fired a shot from a firearm in a public street. I am unable to determine with any degree of accuracy exactly how far apart you and [Redacted] were when you fired the weapon towards him, although I am satisfied that your car was stationary in the street in the vicinity of the driveway. [Redacted] was most likely somewhere between the front door of the house and the letterbox of the property, but I am unable to determine exactly where he was.
95 Your reckless actions resulted in devastating and life altering injuries to [Redacted], and these actions have had an enduring and serious impact on another person’s life, and his enjoyment of that life. As he is a young man, it might be reasonably expected that he will live for many years with the effects of the injuries that you caused him. Although the Court did not receive a victim impact statement from him, it can nevertheless be reasonably concluded from a fair consideration of the photographic and medical evidence that these injuries undoubtedly have had, and will continue to have, a large impact on him. His mother did make a victim impact statement which highlighted that your crime had an impact on her, as well as her son.
96 In recognition of the seriousness with which Parliament treats recklessly causing serious injury in circumstances of gross violence, s 10 of the Sentencing Act 1991 provides that in sentencing you, the Court must impose a term of imprisonment and fix a non-parole period of not less than four years unless the Court finds that a special reasons exists. I shall return to this issue shortly.
97 I make it clear that in my assessment of the appropriate sentence to be passed upon you for the charge of recklessly causing serious injury, I will act on the basis you did not intend to shoot [Redacted], but rather you shot the firearm in his direction, to ‘warn him off’. I will sentence you on the basis that in discharging the firearm you intended to scare him, and not for the bullet to strike him. As to your motivation, you provided a history involving [Redacted] which led up to the offending. Your Counsel accepts that these events, if they occurred, do not serve to offer any type of excuse for your behaviour, but do act to explain the actions that took place, and provide context for what happened.
Mitigating factors
Pleas of guilty and remorse
98 It is important to note that you have pleaded guilty to the offences before the Court. You also made early admissions of your conduct. I have had regard to both these aspects, and taken them into account.
99 Furthermore, your pleas of guilty and admissions to your conduct have spared [Redacted] the trauma of having to give evidence in a contested trial, as well other witnesses. Doubtless he would have found the experience of having to give evidence quite traumatic. You have also spared to community the time and trouble of a contested trial and, to that extent, there is utilitarian benefit in your plea and acknowledgement of guilt.
100 I accept you are remorseful for your actions, and that this is genuine. You told Ms Mynard that on reflecting upon what happened, you feel bad for shooting [Redacted] in the face, and that you know that you have left him with a severe injury. You said you now feel rotten for what you did, that you are ’not like that’, and that you realise that your victim’s life is now permanently changed now because of your actions. You feel sorry for him and wish you could turn back the clock.
101 You led police to where you said you had disposed of the firearm, however it was not found. It is troubling that this weapon was not found, as it leaves open the possibility that the firearm is still in the general community. However, in all the circumstances, including your then mental state, I am not prepared to conclude that there was a deliberate attempt on your part to deceive the police by setting them on a wrong path of investigation. I do give you credit for making the effort to lead the police to an area, despite the fact that ultimately the firearm was never located. I do not draw a conclusion that is adverse to you in respect of this issue.
102 I accept that your plea of guilty and remorse are significant mitigating factors.
103 There are a number of other mitigating factors to be taken into account in the assessment of the appropriate sentence to be passed on you.
The Verdins principles
104 Turning back to your mental and cognitive health, having considered all the evidence and submissions, I am satisfied that with respect of the reckless injury charge, the Verdins principles referred to by your Counsel have application in your case. Ms Mynard concluded that your complex PTSD, schizophrenia, cognitive abilities, and drug use would have had an impact on your behaviour at the time of the offending. In her opinion, your complex PTSD would have significantly impacted your perceptual abilities including your threat perception. Further, you would have been in a high state of arousal, hyper vigilant, and behaving with increased risk taking and impulsivity. Your inhibitions would have been lowered and your ability to reason, plan, and make clear and thoughtful decisions would have been affected.
105 I am satisfied on the evidence placed before me that there were clearly multiple factors at play when you shot [Redacted], and that you have long standing and well established complex PTSD, schizophrenia, and cognitive deficits, which had a causal connection to your offending. As a result, I am satisfied that your moral culpability for this offending is less than it would otherwise have been had you not suffered from these conditions, and that the aspects of general deterrence and denunciation should be moderated to a significant degree in the sentence to be imposed. Having considered the impact of your mental health circumstances, and your background of deprivation, despite the fact that you carried out a very serious act of violence against your victim, in my opinion your level of culpability must be reduced than otherwise would be the case had you been a person that did not suffer from these circumstances.
106 Furthermore, I accept that your disorders and mental impairments will result in your experience of imprisonment being more burdensome than that of someone without such conditions. I accept this principle as articulated in Verdins, resulting in a degree of mitigation in the sentence that shall be imposed. I also accept that your mental health is at risk of deteriorating in a custodial environment, unless you receive ongoing and significant treatment and support.
The Bugmy principles
107 I am also satisfied the Bugmy principles apply in your case and that you have been deprived, abused, and suffered social disadvantage in your formative years, and this has likely had profound and lasting consequences for you. The prosecution did not argue to the contrary. I have taken your dysfunctional background into account in the formulation of the appropriate sentence to be passed. These observations do not excuse your behaviour, but I am satisfied your moral culpability is less than had you not experienced the disadvantages you did. The degree to which moderation of your sentence should take place is affected by the question of special deterrence, community protection, and rehabilitation, which I shall mention below.
Sentencing purposes
General deterrence, denunciation, and just punishment
108 The prosecution submitted that denunciation and just punishment are relevant considerations in sentencing you, but conceded that general deterrence was less relevant in this case given the operation of Verdins limb 3. I agree, of course, that these factors are important in a sentencing equation but in your case they should be moderated given the findings that I have made about your mental health, and your disadvantaged background. Nevertheless, it should be pointed out that the possession, and use, of illegal firearms to intimidate and frighten other persons must be deterred, especially as you acted when you were angry. You also have a prior conviction for a similar offence of possession of a firearm. I regard your possession of a firearm as a serious matter.
109 In the circumstances that I have described, I do not regard the sentence to be passed on you should contain a significant element of general deterrence.
110 For the reasons I have described above, I also do not consider that the circumstances that pertain to you call for a sentence that emphasises denunciation of your conduct. There must, of course, be an element of punishment in the sentence to be imposed, but again this will be moderated in all the circumstances I have discussed.
111 I note that a result of your offending will be the forfeiture of the motor car from which you committed the shooting. For a man of your limited means and resources, I take into account that the loss of your car will amount to an added form of punishment.
Specific deterrence, protection of the community, and rehabilitation
112 Turning to specific deterrence and protection of the community, the prosecution submitted these purposes are important in sentencing you.
113 In my opinion, these factors should be given less weight in the sentencing process in your case. I do not take the view that the sentence to be imposed on you calls for significant or undue weight to be given to these factors. Essentially, this is because your prior history is notably different to the most serious offence you have pleaded guilty to on this indictment. You have not previously been a violent man and in that sense these events have been somewhat out of your previous character. All of your circumstances considered in combination, along with your prior history and your remorse for what occurred, do not persuade me that the sentence to be passed requires a significant component directed towards protection of the community.
114 It is submitted on your behalf that protection of the community is best served by you remaining drug free and linked with appropriate medical services, to reduce your likelihood of relapsing and reoffending. It was noted by Ms Mynard that without intensive treatment and support, your risk of reoffending is high. It is to be expected that you will receive the treatment and assistance you require. Given all that has been placed before the Court, I do not regard your prospects for rehabilitation as bleak, provided you receive proper support in the custodial setting, and later, in the community.
Category 1 implications – gross violence provisions
115 As to the application of the gross violence provisions, having considered the matters contained in s 10 and 10A of the Sentencing Act 1991, and on the evidence placed before the Court, I find that due to the mental health issues I have discussed above, a special reason exists that does not require a non-parole period of not less than four years’ imprisonment to be imposed in this case. I am satisfied on the balance of probabilities that at the time you committed the offences on the indictment you had impaired mental functioning that was causally linked to the commission of the offences, which substantially and materially reduces your culpability.[22] I am also satisfied that your level of impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment,[23] including the need for intensive psychiatric care, and the risk of deteriorating mental illness, in the context of your vulnerability. I also state that in respect of s 10A(2)(c)(i) of the Act, I am satisfied on the evidence that your impaired mental functioning was not caused substantially by self-induced intoxication.
[22]Sentencing Act 1991 (Vic) s10A(2)(c)(i).
[23]Ibid s10A(2)(c)(ii).
Sentencing practices
116 I have been provided with a sentencing snapshot relating to the offence of causing serious injury recklessly, dated December 2021.[24] I have had regard to the statistics in that snapshot, which revealed that for 148 people who received a non-aggregate term of imprisonment in the years 2016–17 to 2020–21, the imprisonment terms ranged from one month and six days to ten years’ imprisonment. The snapshot also indicates that the most common range of imprisonment terms was five to less than six years’ imprisonment. Having reviewed the snapshot, I find it to be of limited utility in making an assessment of the appropriate sentence to pass in this case, mainly for the reason that it does not purport to provide information regarding causing serious injury recklessly in circumstances of gross violence.
[24]Sentencing Advisory Council (2021) ‘Sentencing trends in the higher courts of Victoria 2016–17 to 2020–21’, December 2021 No. 264.
117 I have also had regard to a number of past cases involving recklessly causing serious injury in cases of gross violence, in order to compare sentencing practices in those circumstances.[25] I have also found the cases to have been limited in their application to the present case.
[25]Johns v R [2020] VSCA 135; Hi v The Queen [2016] VSCA 315; Gencev v The Queen [2021] VSCA 188.
Sentence
118 As I have observed, recklessly causing serious injury in circumstances of gross violence carries a maximum penalty of 15 years. The offence of being a prohibited person carrying a firearm carries a maximum penalty of ten years. The summary offence of possessing ammunition without authority or exemption carries a maximum penalty of 40 penalty units.
119 Taking all matters into account I sentence you as follows:
(a)On the charge of recklessly causing serious injury in circumstances of gross violence, I sentence you to six years’ imprisonment;
(b)On the charge of being a prohibited person carrying a firearm, I sentence you to one year’s imprisonment;
(c)On the summary offence of possessing ammunition without authority, you are fined 3 penalty units.
120 I order that six months of the sentence I have imposed on you in respect of Charge 2, being a prohibited person, shall be served concurrently with the sentence on Charge 1, making a total of six years and six months’ imprisonment.
121 Bearing in mind that I have found that a special reason exists such that I am not required to impose a non-parole period of at least four years’ imprisonment, I declare that you will serve four years’ imprisonment before being eligible for parole.
122 Section s 6AAA of the Act requires the Court to declare the sentence that would have been imposed had you not pleaded guilty to these offences. Accordingly, I declare that but for your plea of guilty to the first charge, I would have imposed a sentence of eight years’ imprisonment, and for Charge 2, 18 months’ imprisonment
123 You have been in custody since your arrest on 20 April 2020. Pursuant to s 18 of the Act, the pre-sentence detention as at the plea hearing will be 781 days, not including today’s date.
Finally, I have signed forfeiture orders as requested by the prosecution.
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