Director of Public Prosecutions v Robertson
[2017] VSC 90
•7 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL ROBERTSON |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26-28 October, 4-6, 9-13, 16-20, 23-27 November 2015; | |
DATE OF SENTENCE: | 7 April 2017 | |
CASE MAY BE CITED AS: | DPP v Robertson | |
MEDIUM NEUTRAL CITATION: | [2017] VSC 90 | |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Intentionally causing injury – Reckless conduct endangering persons – Good prospects of rehabilitation – Delay – Family hardship – Exceptional circumstances – Sentenced to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Grant | Office of Public Prosecutions |
| For Mr Robertson | Mr L Gwynn | Lethbridges Barristers and Solicitors |
HER HONOUR:
Michael Robertson, you have been found guilty by a jury of intentionally causing serious injury to Craig Wilson, intentionally causing injury to Kim Bielby, and two counts of reckless conduct endangering persons.[1] All of these offences occurred on 12 July 2014.
[1]The maximum sentences for these offences are: (a) intentionally causing serious injury - 20 years’ imprisonment; (b) intentionally causing injury – 10 years’ imprisonment; (c) reckless conduct endangering persons – 5 years’ imprisonment.
At that time, you were 30 years old, and living with your wife and infant son (“X”), at 11 Levuka Street, Seaford. You had been renting the Levuka Street property since February 2014, while you built your family home in Mount Eliza. Your wife was 34 weeks pregnant with your second child, when the offences took place.
Mr Wilson and Ms Bielby were your next door neighbours, living at 9 Levuka Street. Mr Wilson was 52, and Ms Bielby was 51, at the time of these events.
What happened on the night of 12 July was the culmination of several months’ worth of ongoing tensions between you and the occupants of No 9, particularly Mr Wilson. Shortly after moving into Levuka Street, you began to experience problems with their behaviour. They were noisy and would argue loudly. They both used illegal drugs, and were often abusive and apparently drug-affected.
You called the police on a couple of earlier occasions, to complain about their behaviour.
The first time was on 10 May, when you reported to the 000 operator that Mr Wilson was having a domestic dispute with Ms Bielby, and was “screaming his head off” and “going mental”.
On 9 June, you and Mr Wilson had a verbal confrontation outside the front of your properties. You made a further 000 call, in which you reported that Mr Wilson was “flipping out again”, screaming his head off, and had thrown what you thought was a brick at your house. On that occasion, Mr Wilson refused to come out of his house to speak to police. When police spoke to you that day, you told them that you would do “whatever it takes” to protect your family.
Although you were not at that time aware of the extent of Mr Wilson’s criminal history, you were concerned that he might have weapons, and that he claimed to know people in jail. There was also a frequent visitor to No 9, whose car licence plates suggested a possible connection with an outlaw motorcycle club.
During June, you moved a large gate from the side to the front of your property, thereby allowing your German Shepherd dog access to your entire property. You also built a wooden extension to the shared boundary fence between your property and No 9. You took these defensive measures because of your concerns about Mr Wilson.
In late June, you also contacted your real estate agent, to enquire about the possibility of moving rental properties, to get away from what you described as the “drug dealing psychopath” next door. However, you were ultimately dissuaded from pursuing that course of action by your wife.
You spent most of the day of the offending building your new family home in Mount Eliza. After work, you went out drinking with some of your co-workers. You drank about 6 pots of beer.
That evening, Mr Wilson and Ms Bielby were at home. Around 8 pm, Mr Wilson walked into their backyard and began yelling abuse, as he violently struck the fence extension between your two properties with a piece of paling. He struck with such force that he dislodged or smashed several palings, which landed on your property outside X‘s bedroom window. Mr Wilson was angry and intoxicated, having drunk at least a bottle of port in the preceding hour or so.
Around 8.15 pm, your wife called 000. She said that Mr Wilson was yelling, swearing and “bashing down the fence”. After calling the police, she called you to tell you what had happened. She asked you to come home straight away.
By the time the police arrived at 8.30 pm, Mr Wilson had gone back inside and everything was quiet at No 9.
You arrived home shortly after the police had left. You went outside with your wife, to inspect the damage to the fence. You told your wife to pack her bags, as it wasn’t safe to stay in the house. Your wife described you as being upset, emotional, frustrated, and under the influence of alcohol.
You went and got a sawn-off shotgun and ammunition, from the locked trailer in which you stored some of your tools. You loaded the shotgun, and proceeded to the side of your property closest to No 9. You were yelling words to the effect of “Don’t threaten my wife and baby.”
You placed the shotgun against the fence extension and fired a shot right through the timber. It hit the side of the house at No 9, as well as breaking part of the nearest window, which was that of Ms Bielby’s bedroom. The house at No 9 was only about one metre from the dividing fence. That conduct constitutes charge 1, reckless conduct endangering persons.
You then walked out the front of your property, onto the footpath in front of No 9. You fired a shot towards the front of No 9, hitting the front wall and breaking part of the window to Mr Wilson’s bedroom. You fired that second shot from a distance of about 10 metres. That conduct constitutes charge 2, reckless conduct endangering persons.
Fortunately, at the time of firing those two shots, nobody was in either bedroom. Mr Wilson and Ms Bielby were both in the kitchen-living area, at the back of their house.
After firing the second shot, you went back inside your house.
A short time later, Mr Wilson came outside and onto the road in front of his property. He yelled loudly for you to come out and “sort things out”. He threw and smashed some garden ornaments. You came outside and stood in your front yard. The two of you exchanged loud, angry threats. You then intentionally fired the shotgun in the direction of Mr Wilson, causing serious injury to him, while he was standing somewhere in the street, near the boundary between your two houses. That constitutes the offence of intentionally causing serious injury.[2]
[2]Which was left to the jury as an alternative to charge 4, intentionally causing serious injury in circumstances of gross violence.
After you shot Mr Wilson, he retreated back onto his property, and collapsed on the path between the front gate and front door.
At some stage after shooting Mr Wilson, you went into the front yard of No 9. Ms Bielby had come out of the house, with the intention of helping Mr Wilson. She was unarmed and, upon seeing you inside the front gate, raised her open hands and gestured to Mr Wilson. You struck her once in the face with the barrel of the shotgun, causing injury to her face and mouth, and knocking her unconscious for a short period of time. That constitutes charge 6, intentionally causing injury.
After shooting Mr Wilson and striking Ms Bielby, you went and hid the gun under the ballast of the train tracks, which ran along the back of your property.
Your wife and some of the neighbours called the police during the course of the incident. You surrendered yourself to police and were arrested that night. You later told police where the gun was hidden.
At your trial, there was no dispute that you discharged the firearm at Mr Wilson when he was out on the street, causing serious injuries to him. What was, and remains, in dispute is the number of shots fired by you at Mr Wilson.
The prosecution case at trial was that you shot at Mr Wilson three times: the first shot while he was standing out on the street in front of your house; the second shot at the front gate of No 9, as he was fleeing from you; and the third shot inside the front yard of No 9, while he was curled in a foetal position on the ground. Given the way the prosecution case was run, in returning verdicts of not guilty of attempted murder, and not guilty of intentionally causing serious injury in circumstances of gross violence, the jury must not have been satisfied beyond reasonable doubt either that you fired the third shot, or that any of the shots were pre-planned. However, it is not clear from the jury’s verdict whether the jury found that you fired one or two shots at Mr Wilson.
The prosecution urged me to find for sentencing purposes that you fired more than one shot at Mr Wilson: first, when he was out on the street, and secondly, at some point during Mr Wilson’s retreat to his property.
The total number of shots fired by you that night is contentious, for the following reasons.
Although many residents of Levuka Street gave evidence at the trial, their accounts as to how many shots they heard varied significantly. That is understandable, given that the shots were fired quickly and unexpectedly, at night, while most residents were occupied doing things inside. Many of them initially thought the noises had something to do with the railway line, which runs along the back of some Levuka Street properties.
Mr Wilson’s credibility was in tatters by the end of his evidence, and I would accept little of what he said about anything without corroboration. Ms Bielby did not see any of the shooting.
None of the other neighbours saw the entire incident. Those who did see any part of it differed significantly in their accounts of what you and Mr Wilson did, and were inaccurate or unreliable in some of their evidence. The evidence of Mr Bellamy, who lived at No 13, could support a finding that you fired a second shot at Mr Wilson when you were near the gate of No 9. But Mr Bellamy was moving around and observing from an imperfect vantage point; he also admitted he was “freaking out” at the time. On the other hand, Mr Keen, who was observing from his front window directly across the road, only saw you shoot Mr Wilson once, before returning to your property. However, Mr Keen did not see you go to No 9 at any stage, yet you must have done that in order to strike Ms Bielby there. Apart from the sudden, frightening and unexpected nature of what the neighbours were observing, it was dark at the time, and the nearest street lighting was some distance away.
Although some spent cartridges and wads were found in various locations, there was no forensic evidence that suggested that a second shot was fired when Mr Wilson was near the gate of No 9, or fleeing from where you first shot him.
Mr Wilson had shotgun pellets scattered over large areas of his torso and limbs, particularly his right chest, right leg and left flank/buttock region. The prosecutor invited me to conclude, as what he described as “a matter of basic logic”, that the pattern of injuries to Mr Wilson’s body could not have been caused by a single shot. That submission has a superficial appeal, and it is entirely possible that more than one shot was fired at Mr Wilson. However, there was forensic evidence as to how the small pellets from a sawn-off shotgun spread out in height, width and depth over distance, and may strike different parts of a moving body. Further, the prosecution’s own medical experts were unable to express an opinion as to how many shots would have been needed to cause the particular injuries.
Given the state of the evidence, I am not satisfied beyond reasonable doubt that more than one shot was fired at Mr Wilson, or that you shot him as he attempted to flee.
That said, it is relevant that the shot which you fired at Mr Wilson was the third shot fired that night. You must have reloaded sometime between firing the two shots at the house and shooting Mr Wilson. Then, shortly after shooting Mr Wilson, you struck Ms Bielby. Although your actions were relatively spontaneous, the shot fired at Mr Wilson was not an isolated act of violence that night.
There are a number of other matters that are relevant to assessing the seriousness of the offence of intentionally causing serious injury.[3]
[3]Your offending occurred after 1 July 2013, when the definition to “serious injury” in the Crimes Act 1958 changed.
First, the injuries sustained by Mr Wilson were significant, life-threatening and ongoing. Some of the pellets penetrated deep into Mr Wilson’s body and limbs. He needed emergency surgery for his chest and abdominal injuries, which included damage to his left lung, pancreas, spleen, left kidney and large intestine. His spleen was removed, which places him at an increased risk of future infections. There are still numerous pellets embedded in his body; from time to time, some of them make their way to the skin surface, and may require further surgery to remove.
Secondly, there are a number of matters relating to the weapon you used. A firearm is a particularly dangerous weapon. You fired a shotgun at an unarmed person, who was standing in a public street. You did not hold a licence to possess the firearm or the ammunition. Those are all aggravating features of your offending.
The prosecution also contends that the fact that the shotgun had been shortened is, of itself, an aggravating feature. In some cases, the use of a sawn-off gun might be aggravating – for example, in an armed robbery, if the gun had been shortened in order to enable it to be concealed. That is not the case here. You bought the already sawn-off shotgun and ammunition in 2002, when you were in your late teens, from the owner of a property you were renovating. While living at Levuka Street, you kept the gun and ammunition locked in a trailer in your driveway. Whilst that was a stupid, as well as an illegal, thing to do, there is no suggestion that you obtained or kept the gun for the purpose of enabling you to commit any offences.
As far as the offence of intentionally causing injury is concerned, you struck Ms Bielby in the face with the butt of the gun, when she was unarmed and posed no threat to you. At the time, she was trying to help Mr Wilson, who was lying injured on the ground in their front garden. It was an entirely gratuitous and unprovoked blow, to someone who had played no role in that night’s events. Your blow rendered her temporarily unconscious, caused a laceration to her face, and further damaged her already damaged teeth.
As far as the offence of reckless conduct endangering persons is concerned, you fired two shots at the walls of your neighbours’ house at night time, both from relatively close distances. There is no evidence that you thought there was anybody in either of the rooms at the time, but it was entirely foreseeable that somebody could have been seriously hurt as a result of your actions. You were also shooting at your neighbours’ home – a place where they were entitled to feel safe – at a time when they were inside.
There is a dispute as to why you fired those first two shots. The prosecution argued that you fired them in anger, in order to draw Mr Wilson outside for a confrontation. Your counsel suggested that you fired them only as warning shots, to deter Mr Wilson from engaging in any further aggression, and to send him a message that you would protect your family. Even if you only fired the shots in warning, that does not detract from the dangerousness of your actions.
Your counsel urged me to assess your culpability in the context of what he described as the “unique factual circumstances” surrounding your offending. He argued that the events leading up to 12 July should have a mitigating effect.
For the reasons already given, Mr Wilson (and, to a lesser extent, Ms Bielby) were far from ideal neighbours. Although you did not know the full extent of Mr Wilson’s criminal history and drug usage, you were concerned about his loud and abusive behaviour, and the potential for violence. I have already discussed the various steps you had taken in the months leading up to the night in question.
You were very protective of your heavily-pregnant wife and young child, particularly in relation to a neighbour whose behaviour had caused concerns in the past. But, by the time you got home, the police had been and gone, and Mr Wilson was inside and posing no immediate threat to anybody. Instead of just going inside and comforting your wife, you went and got a dangerous weapon, loaded it, and fired two shots at your neighbours’ house. The effect of that conduct was to enrage him and draw him outside, where he sought to confront you. Once again, you could easily have stayed inside at that time. But you were both fuelled by anger, and disinhibited by alcohol. The two of you ended up outside, yelling abuse at each other. He was unarmed and posed no immediate threat to you or your family.
Having regard to the way the trial proceeded, including the questions asked by the jury, it is possible that the jury accepted that you shot Mr Wilson because you believed it was necessary to do so in order to defend yourself and your family. However, by returning a verdict of guilty, the jury either was not satisfied that there was a reasonable basis for your belief, or believed that your response was disproportionate to the threat posed by Mr Wilson. Given the matters I have just discussed, it is not surprising that the jury thought you overreacted to the situation.
Neither Mr Wilson nor Ms Bielby chose to provide a victim impact statement. Although Ms Bielby’s physical injuries were temporary in nature, the same cannot be said of Mr Wilson, whose injuries continue to have an impact on his health and wellbeing.
You were born in January 1984, and are now 33 years old. You are the middle child of five siblings.
Your family moved from England to Australia when you were five years old. Your family lived in Rye and you attended primary school there, before moving to Mount Eliza where you continued your schooling. Your childhood was generally a happy and uneventful one.
You completed a builders’ apprenticeship in 2004. After working in the building and construction industry for a number of years, you started your own construction company in 2011. The character references tendered at your plea hearing testify to your strong work ethic and professionalism, as well as your involvement in voluntary work in Australia and overseas.
In 2006, you moved to the Gold Coast, where you met your wife, Heidi. In April 2009, you moved back to Melbourne for work; Heidi followed you in November that year. The two of you married in March 2012. You now have three children together.
You are fortunate to have the strong support of your family, many of whom attended court throughout your trial and plea hearings.
There was oral and written evidence from forensic psychologist, Patrick Newton. Mr Newton assessed you on two occasions, once in relation to a bail application and once for sentencing purposes. Mr Newton has also been in contact with your treating psychologist, his colleague, Dr Matthew Barth.
I accept Mr Newton’s evidence that you have progressed well and developed good insight into your actions as a result of regular counselling sessions with Dr Barth, which have specifically addressed your anger management skills. I also accept that your behaviour on the night in question is now abhorrent to you, and that you deeply regret your actions.
In October 2015, you offered to plead guilty to intentionally causing injury to Mr Wilson, and recklessly causing injury to Ms Bielby. Those offers were rightly rejected by the prosecution, as not reflecting adequately the seriousness of your offending. Although the offers are supportive of the finding of genuine remorse, they do not attract any discount in themselves.
You do not suffer from any mental or psychiatric disorder. When you were first placed in custody in July 2014, Mr Newton diagnosed you as suffering from a moderate adjustment disorder, with symptoms of depression and anxiety. I accept that such symptoms may well return in a custody situation. But there is no evidence that they would not be capable of treatment or management, or would be sufficiently serious to engage Verdins principles.
You have no history of violence or serious offending, and there are no subsequent or pending criminal matters. During the long period on which you have been on bail, you have complied with all conditions, and attended all court appearances.
The need for specific deterrence in this case is low. Having regard to your history, your strong work ethic, close family and community supports, lack of mental health or substance abuse issues, and genuine remorse, I accept that you present a low risk of reoffending and have good prospects for rehabilitation.
However, apart from the need for just punishment and denunciation, there remains a need for general deterrence. People must be deterred from resorting to violence, particularly by the use of dangerous weapons, to resolve neighbourhood disputes, even in the context of misguided self-defence or defence of others.
There are a couple of other matters that are highly relevant to sentencing you.
There has been a lengthy delay in sentencing you, which has come about in the following circumstances.
Your trial finished at the end of November 2015, at which time your counsel sought time to obtain a psychologist’s report for the plea. The initial plea hearing occurred in mid-March 2016. At the completion of that hearing, I reserved my decision. Unfortunately, due to other work commitments, I was not in a position to sentence you immediately.
On 19 August, your lawyers asked the court to list the matter for further mention, in order to raise some matters that had arisen since the plea hearing. A few days later, the court was informed that your wife had undergone an emergency caesarean section, and your baby (“P”), was critically ill and in intensive care. The proposed mention date was pushed back for a couple of weeks, to enable you to attend to your family’s immediate needs.
By the time the matter came on before me on 7 September 2016, P was out of intensive care, but still in hospital. Although it was apparent that P had suffered a brain injury, the extent of his condition could not be established at that time. The prosecution did not oppose your request for a further adjournment for a few more months, to enable P’s condition to stabilise, and for treating doctors to be in a position to provide reports regarding P’s prognosis and future needs. Medical reports were provided in December, shortly before the court’s summer break, and the further plea was listed for hearing at the start of this court term.
I will shortly discuss the medical evidence in relation to P, when considering whether exceptional circumstances have been established. But a separate question arises as to what, if any, effect the delay in sentencing you should have on your sentence.
Delay can be a relevant sentencing consideration in two ways:
(a) First, it is relevant to the extent to which an offender has achieved rehabilitation during the delay, which affects the extent to which specific deterrence is required; and
(b) Secondly, it is relevant to the extent that it constitutes a form of punishment or unfairness in itself, given the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head, and being required to live “life on hold”.
There is no requirement that delay must be inordinate, before it can be taken into account for sentencing purposes. However, the length of the delay, the reasons for the delay, and the effect of the delay, may be relevant considerations in deciding how much weight to give to it as a mitigating factor in any particular case.
Here, the period of time between arrest and verdict was just over 16 months, and from verdict to sentence has been a similar period. There is nothing unusual or unfair about the period between arrest and verdict, given the nature of the case and the fact that there were committal proceedings in the Magistrates’ Court in the meantime. However, the delay between verdict and sentencing is considerably longer than usual for this court, and came about in the circumstances just described.
Apart from 6 days in custody, you have been on bail since you were arrested on 12 July 2014. During that time, you have not re-offended, and have voluntarily undertaken counselling to address the anger management issues that contributed to your offending. You have worked hard, completed and sold the family home, and assisted your wife in the care of your children. I accept that you have used that period of time to rehabilitate yourself, and reduce the risk of re-offending.
Your life has been to some extent on hold, as you have awaited sentencing. Since the trial, you have stopped taking on new building contracts through your construction company, because of uncertainty about your liberty. Instead, you have worked only as a subcontractor to others, which has resulted in a substantial drop in your family’s income. I also have no doubt that having the prospect of imprisonment hanging over your head for such a period of time has caused you considerable anxiety.
The other substantial development since the end of the trial has been P’s birth in August 2016. Dr Kathy McMahon, the clinical director of paediatrics at Frankston Hospital, gave evidence as to P’s condition and prognosis. Due to a lack of oxygen during his birth, P suffered from a form of brain damage known as hypoxic ischaemic encephalopathy. Where that condition occurs, it often leads to severe developmental and cognitive delays, or motor impairment. P has already been diagnosed as being deaf; he needs hearing aids. He has poor visual response and head control. He also has very tight muscles, which require regular physiotherapy and movement.
Based on his symptoms and the various tests conducted to date, Dr McMahon believes that P has somewhere between a 90% and 100% chance of developing cerebral palsy (although a formal diagnosis of that condition is not usually made until an infant is between 12 and 18 months old). There is also a risk that he will develop global developmental delay, a separate condition which can be associated with intellectual disability.
P’s condition means that he requires significant care and assistance, substantially beyond the ordinary needs of an infant, and intensive early intervention to maximise his potential and help with spasticity. That early intervention will include regular, ongoing physiotherapy and speech therapy, as well as constant work with P at home to maximise the development of his motor skills and language abilities. There will also need to be audiological appointments, and possible surgery to install cochlear implants. Even with such intervention, as he grows up P is likely to need round the clock assistance with all activities of daily living.
Your wife is now 27 years old. Your oldest child, X, is almost 4 years old, and your daughter (“S”) will turn 3 later this year. Although X and S attend child care for one day each week, at present it is not financially feasible for them to go more frequently. During the day, your wife is the sole carer for three children under the age of 4, one of whom has the special needs I have described. Although you are generally out of the home working for eight to 10 hours each day, you are available to undertake various domestic tasks and assist with the care of the children in the evenings and on weekends.
You are the sole income earner in the family. Your wife never completed her tertiary studies, and was working in hospitality before the birth of your first child. It would not be economically practical for her to return to work, because the cost of child care for three young children (even if it could be obtained for P) would exceed the amount she might earn working in hospitality.
You and your wife are both close to members of your respective families, some of whom live in Victoria and some in Queensland or overseas. No doubt some of them will be able to help out with the children on an occasional basis. But due to their own work or family commitments, it seems that none of them will be able to move in with your family, or provide substantial ongoing assistance, while you are in prison.
The Court of Appeal has made it clear that unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration. In Marcovic v R,[4] the court explained the reasons for that principle as follows:
[4](2010) 30 VR 589.
(a) It is almost always inevitable that imprisoning a person will have an adverse effect on their dependents;
(b) The primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime;
(c) To treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent people would suffer less; and
(d) To treat an offender who had needy dependants more leniently than an equally culpable co-offender who had none would defeat the appearance of justice and be patently unjust. Hence, it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship may be taken into account.
I have carefully considered the many cases that were referred to me, in which judges have been asked to find that exceptional circumstances existed. It is clear that each case turns on its own facts, and that exceptional circumstances will be found to exist only in rare cases. However, I am satisfied that this is such an exceptional case.
You are someone who takes great pride in being able to provide for and protect your family. You are well aware that imprisonment will place a very significant burden on your young family, particularly your wife. It is not disputed that the family hardship that will flow from your imprisonment will weigh very heavily on you personally. Your anguish at being unable to care for your family, while you are in prison, is a separate mitigating factor, quite apart from the third party hardship to your family.
Where third party hardship can properly be taken into account to reduce sentence, it will be relevant both to the type and quantum of sentence to be imposed.
Your counsel submitted that, having regard to the matrix of events surrounding your offending, as well as your personal circumstances, it would be appropriate to impose a non-custodial sentence, in the form of a lengthy community correction order.
There is no doubt that, as a matter of law, a CCO may be imposed even in the case of a serious offence such as intentionally causing serious injury, which might previously have attracted a medium term of imprisonment. In Boulton v R,[5] the Court of Appeal discussed the possible punitive, deterrent and rehabilitative aspects of a CCO. The legal principles are not in dispute. The question is whether a CCO is sufficient to reflect the seriousness of your particular offending.
[5][2014] VSCA 342.
I was not assisted by the cases on current sentencing practice provided by the prosecution, as most of them involved far graver instances of intentionally casing serious injury, and/or accused persons with multiple prior convictions or very different personal circumstances, than in this case.
Your offending (particularly the offence of intentionally causing serious injury) is objectively serious, involving a series of offences committed by the use of a dangerous, unlicensed weapon, fired on a number of occasions in a residential area, and resulting in serious, ongoing injuries to the principal victim. Even having regard to the exceptional circumstances, and the other mitigating factors that I have found to exist, I have concluded that the purposes for which this sentence is to be imposed cannot be achieved by a CCO (either alone, or in combination with a short term of imprisonment). However, I have decided to impose shorter individual and total sentences, and a shorter period before you are eligible for parole, than I would otherwise have regarded as appropriate for this offending.
Although the offences occurred within a relatively short space of time, there needs to be some accumulation between sentences, to reflect the fact that there was separate criminality involved in the offences, two different victims, and several opportunities for you to have walked away.
Balancing as best I am able the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, for the offence of intentionally causing serious injury to Mr Wilson, I sentence you to imprisonment of 3 years and 6 months. That is the base sentence.
For the offence of intentionally causing injury to Ms Bielby, I sentence you to 9 months’ imprisonment. I order that 2 months of that sentence be accumulated on the base sentence.
For each of the two offences of reckless conduct endangering persons, I sentence you to 6 months’ imprisonment. I order that 2 months of each of those sentences be accumulated on the base sentence.
That makes a total effective sentence of 4 years’ imprisonment. I fix a period of 2 years as the period you must serve before becoming eligible for parole.
Further, I declare that the period to be reckoned as already served under this sentence is 6 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
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