Director of Public Prosecutions v Saffron
[2018] VCC 472
•10 April 2018 (in Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01605
Indictment No. H11362068
Case No. CR-18-00055
Indictment No. H11046847
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLINTON ANTHONY SAFFRON |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Latrobe Valley and Melbourne | |
DATE OF PLEA HEARING: | 20 February 2018 (in Latrobe Valley) and 15 March 2018 | |
DATE OF SENTENCE: | 10 April 2018 (in Melbourne) | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Saffron | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 472 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of reckless conduct endangering life – one charge of a prohibited person possessing a firearm – one charge of causing injury recklessly
Legislation Cited: Crimes Act 1958, s18, s22; Confiscation Act 1997, s32; Firearms Act 1996, s5(1); Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308; Phillips v R [2012] VSCA 140
Sentence: Total effective sentence of 3 years 6 months imprisonment; Non parole period of 2 years 3 months; 330 days pre-sentence detention declared as already served; 6AAA declaration 6 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr W Stougiannos | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms K McFarlane (at Latrobe Valley on 20 February 2018) Mr A J Patton (at Melbourne on 15 March 2018) | McFarlane Criminal Law |
HIS HONOUR:
1 Clinton Anthony Saffron, you have pleaded guilty to the following offences:
(a) In relation to Indictment H11046847 (CR-18-00055), you:
(i)At Morwell in Victoria on 22 March 2017, without lawful excuse, recklessly caused injury to Karoly Incze.
The offence of causing injury recklessly is contrary to s18 of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment.
(b) In respect of Indictment H11362068 (CR-17-01605) you:
(i) At Morwell in Victoria between 15 May 2017 and 16 May 2017, without lawful excuse, recklessly engaged in conduct, namely the discharge of a firearm in the direction of Natasha Lawrence, Drew Bunker and Bailey Bunker, that placed Natasha Lawrence, Drew Bunker and Bailey Bunker in danger of death.
Reckless conduct endangering life is contrary to s22 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment;
(ii) At Morwell in Victoria between 15 May 2017 and 16 May 2017, was a prohibited person in possession of a firearm.
A prohibited person possessing a firearm is contrary to s5(1) of the Firearms Act 1996, and carries a maximum penalty of 1200 penalty units or ten years’ imprisonment.
The circumstances of the offending.
2 The prosecution has provided a document headed “Amended Summary of Prosecution Opening upon Plea” dated 12 January 2018, which provides a written summary of the circumstances surrounding your offending. Such summary has been marked as an exhibit (Exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending.
3 The important matters of such summary in relation to the offending involving you causing injury recklessly (Indictment H11046847) are:
·You were born on 27 April 1981 and at the time of that offending you were thirty-five years old.
·The complainant, Karoly Incze (“the complainant”) was sixty years old at the time of the offending.
·You and the complainant were not known to each other personally, however your mother and father-in-law resided at 1 Lae Court Morwell, a short distance from the complainant’s address. Apparently the complainant had seen you at that address from time to time.
·On 22 March 2017, at approximately 6.12pm, police attended at the complainant’s address due to a neighbour dispute between the complainant and a young male from 3 Lae Court Morwell. On leaving the complainant’s address at approximately 6.33pm, police observed a young male going to the front door of 1 Lae Court.
·At approximately 6.45pm, you knocked on the complainant’s door and told the complainant to step outside, which he did.
·You confronted the complainant about “picking on little kids” and thereafter punched the complainant to the face and head-butted him to the forehead (Charge 1 – recklessly causing injury). You then left the complainant’s property.
·The complainant reported the incident to police, who attended the complainant’s property a short time later and observed the complainant to have a small laceration to his forehead from the assault. He did not seek medical attention.
·The complainant attended the Morwell Police Station and made a statement regarding the matter and his forehead was photographed by police.
·The complainant identified you as the male that had assaulted him.
·On 28 March 2017, you were arrested and interviewed by the Morwell police, during which you did not make any admissions in regard to the assault.
4 At the plea hearing, counsel for the prosecution tendered two photographs of the complainant which show some laceration at the lower part of the forehead (see Exhibit 2).
Victim Impact Statement
5 Counsel for the prosecution also tendered a Victim Impact Statement declared by the complainant on 28 January 2018. Such Victim Impact Statement was read aloud in Court and ultimately tendered (see Exhibit 3).
6 In that statement, the complainant describes that since being assaulted by you, he becomes “stressed and nervous” when going out into the front yard or when a stranger comes towards him. Moreover, in such situations he relives the whole situation in his mind, feeling like the same situation will occur again. Such concerns are not only for himself, but also his wife. He describes how his wife starts panicking when someone knocks on their front door and does not open the front door or go out.
7 The complainant stresses that he cannot understand why he was attacked by you when neither he nor his wife said or did anything wrong against you or your family. Ultimately, the complainant describes that his life and that of his wife has “changed dramatically” as a result of the assault.
8 Following the assault, the complainant described the skin of his forehead was split, causing it to bleed heavily, and he had a headache and was dizzy for a couple of days.
9 Now that the case has gone to court, the complainant notes that he is even “more worried what will happen after the outcome of the legal proceedings”. He is concerned about not feeling safe in his own home and, in particular, when he and/or his wife are walking in the street or going for a walk generally, or performing shopping.
10 In relation to the offending involving reckless conduct endangering life and a prohibited person possessing a firearm (Indictment No. H11362068), the important matters of the prosecution summary are:
·At the time of that offending, you were thirty-six years old.
·The victims are Drew Bunker (“Drew”), Natasha Lawrence (“Natasha”) and Bailey Bunker (“Bailey”), who is the infant son of Drew and Natasha, and at the time of the offences was approximately ten months old. Drew and Natasha had another child, Tyson, who was four years old.
·As at 15 May 2017, you resided with your father at 1 Olivia Street, Morwell, and “the victims” resided across the street at 4 Olivia Street, Morwell.
·You and the victims were known to each other.
·At approximately 10.00pm on Monday, 15 May 2017, you were walking up and down Olivia Street, carrying a portable speaker and playing music loudly.
·You knocked on the victims’ front door and Natasha saw her brother, Taylor Lawrence, answer the door. At that time he told you to turn the music off because Bailey and Tyson were trying to sleep. You replied “What” loudly, at which point Taylor Lawrence said “I said turn your fucking music off”.
·At that time, Drew went to the front door and said to you “I have told you before not to come to my house this late playing your music that loud. My son is in bed and Bailey is sick”, to which you replied with words to the effect of “My music isn’t even that loud and you haven’t even told me not to come over.”
·You walked back towards your house a few steps and then returned, yelling at Drew and Taylor Lawrence, during which time your music was still playing loudly. Drew told you to “fuck off” and “go home”. You yelled at Drew “Just you wait two minutes” to which Drew replied “What are you doing calling some mates around?”. After this, Drew and Taylor Lawrence came back inside the house.
·
Approximately five minutes later Drew, Natasha and Bailey, together with Taylor Lawrence, were seated in the lounge room when Natasha heard a loud bang, which caused her to jump. Drew ran outside and stood in the front yard near the letterbox. Natasha, holding Bailey, ran outside and stood on the ramp leading to the front door.
Taylor Lawrence was also standing outside the house. Natasha could hear Drew yelling at you “This is my family home. My kids are here. I’ve told you not to start your shit here.” Although you were yelling back, Natasha could not hear what you were saying.
·Natasha could see you standing in the front yard behind a fence. She then heard a loud bang followed by a whizzing noise. She believed at the time that you were shooting at them (Charge 1: reckless conduct endangering life).
·Natasha returned to the house, after which Drew and Taylor Lawrence also returned to the house and retrieved a baseball bat from inside the room, then went back outside.
·The mother of Natasha then arrived, as had been previously arranged, and they began to pack bags in order to get the children out of the house. Although Natasha could hear yelling outside, she could not hear the words.
·Neighbours also reported hearing two banging/cracking noises that sounded like gun shots on the evening of 15 May 2017, around midnight.
·Victoria Police Divisional Units responded to reports of gun shots and yelling, logged at 10.58pm that evening. Police attended your address and looked through the front window of the house, having heard arguing inside. They observed an older man – your father – wrestling with you inside the house. They observed an ammunition belt holding ammunition. Once inside the house they found a .22 rifle and the bolt action from the rifle under the mattress of the bed where the rifle was located (Charge 2: prohibited person possessing firearm).
·You were arrested and gave a partial no-comment interview. You did allege that unknown persons assaulted you, but refused to make a statement. You had earlier informed police that Drew had pointed a shotgun at you that evening, but refused to make a statement.
·On 16 May 2017, the Latrobe Crime Investigation Unit recovered a projectile, thought to be a .22-calibre bullet from the wall of the victims’ house, next to the ramp leading up to the front door. Police also located a spent .22 cartridge and two unspent .22 cartridges in the driveway of your residence.
·On 16 May 2017, police also executed a search warrant of the victims’ address and a shotgun was not located on the premises.
·As at 15 May 2017, you were a prohibited person to possess a firearm, as on 21 November 2016 you had been sentenced to an eighteen months' community correction order.
Your criminal record
11 Counsel for the prosecution also made reference to your criminal record. At the time of being arraigned, such criminal record was admitted through your then counsel. Seemingly, such record was not tendered as a result of oversight, and I will have such record marked as Exhibit 4.
12 Your criminal record is extensive and extends back over many years. Seemingly, your last attendance at court was on 21 November 2016 at the Latrobe Valley Magistrates’ Court, when you were convicted of contravening a family violence intervention order, making threat to inflict serious injury, possessing cartridge ammunition without licence or permit, all of which resulted in a sentence of a community correction order for a period of eighteen months, commencing on 21 November 2016. Obviously enough, the subject offending has occurred during the currency of such order.
13 Much of the offending does involve driving and vehicle-related offences. I will attempt to highlight those matters which are relevant to the subject offending.
14 I note the following:
(a)On 30 August 2001, at the Ringwood Magistrates’ Court, you were convicted of recklessly causing injury, together with intentionally damaging property and a variety of driving offences. You were convicted and sentenced to a community-based order for twelve months;
(b)On 6 February 2002, you were convicted of intentionally causing injury, assault in company and burglary, and sentenced to an aggregate of six months’ imprisonment to be served by way of an intensive correction order. I also noted that on that day you were found guilty of failing to comply with a community-based order made on 30 August 2001 and you were sentenced to a period of five months’ imprisonment to be served by way of a further intensive correction order;
(c)On 1 August 2002, at the Ringwood Magistrates’ Court, it was proven that you failed to comply with the intensive correction order made on
6 February 2002, and you were required to serve an unexpired portion of six months' imprisonment.
(d)On 16 September 2002, at the Broadmeadows Magistrates’ Court, you were found guilty of reckless conduct endangering serious injury, unlawful assault and behaving in a riotous manner in a public place, and together with other driving offences, was sentenced to thirteen months’ imprisonment. On 18 December 2002, at the Melbourne County Court, an appeal was allowed in respect of such order, and you were sentenced to a period of twelve months’ imprisonment with a
non-parole period of six months’ imprisonment, it being noted that you had served 140 days pre-sentence detention;
(e)On 9 June 2010, you were convicted of reckless conduct endangering life, reckless conduct endangering serious injury, resisting police and assaulting police. You were also found guilty in relation to various driving offences, wilful damage, threatening words in a public place and theft offences. You were ultimately ordered to serve a period of imprisonment of one year and eleven months, with a non-parole period fixed at fourteen months;
(f)On 21 August 2012, at Latrobe Valley Magistrates’ Court, you were convicted of contravening a family violence intervention order, criminal damage, and unlawful assault, and were sentenced to an aggregate period of three months’ imprisonment, wholly suspended pursuant to the then s27 of the Sentencing Act 1991. On 6 April 2014, you were found guilty of breaching the suspended sentence made on
21 June 2013 and the sentence was wholly restored.
(g)On 16 May 2014, you were convicted of recklessly causing injury, unlawful assault and resisting police, together with driving while disqualified, handling, receiving and disposing of stolen goods, and acting in a disruptive manner. At that time you were sentenced to one year and six months’ imprisonment, with a non-parole period fixed at eight months.
15 Your counsel, in the course of his address, submitted that an appropriate disposition may be a community correction order. You were assessed for such order on 15 March 2018, and in a letter of the same date authored by the assessing community corrections officer, Ms Eva Kafkalas, you were assessed as being “unsuitable” for a community correction order. As stated by Ms Kafkalas:
“Mr Saffron has had significant involvement with Community Correctional Services (CCS). This includes:
2000 - Community Based Order - Community Work - contravened
2001 - Community Based Order - contravened
2002 - Intensive Correction Order x 2 - contravened
2003 - Parole Order - completed
2003 - Community Based Order - Fine Default - completed
2004 - Community Based Order - contravened
2007 - Parole Order - completed
2011 - Parole Order - contravened
2015 - Parole Order - contravened
2016 - Community Correction Order - contravened
As stated above Mr Saffron is in current contravention proceedings at the Melbourne Magistrates Court. Mr Saffron contravened this order by conditions and further offending, being these matters. When Mr Saffron was asked what he might do differently to complete a further Community Correction Order, he responded with ‘I don’t know’. In addition to this Mr Saffron questions the police summaries and stated that he did not know exactly what charges and events he was pleading guilty to, and that his interpretation of events was different to that of the prosecution summaries.
Given his past lack of compliance and continuous re-offending whilst on community based dispositions, Mr Saffron has been found unsuitable for a further Community Correction Order”.
16
Counsel for the prosecution noted that this matter resolved at the earliest opportunity and you were entitled to the benefit of s6AAA of the
Sentencing Act1991. Furthermore, I was informed that you had been remanded in custody since 16 May 2017.
17 Counsel for the prosecution also indicated that there were applications for a disposal order pursuant to s32 of the Confiscation Act 1997 and a forfeiture order pursuant to s151(1) of the Firearms Act 1996 in relation to Indictment No. H11362068.
Your personal circumstances and background
18
When this matter first came on for hearing on 20 February 2018,
Ms McFarlane appeared on your behalf. At that time she tendered the following material:
(a) Defence Plea Submissions dated 20 February 2018 (Exhibit “A”);
(b) Justice Health materials (Exhibit “B”);
(c)Report from the forensic psychologist, Dr Aaron Cunningham, dated
5 June 2017 in respect of a psychological assessment undertaken at the Melbourne Assessment Prison on 4 June 2017 (Exhibit “C”).
19 When this matter was brought back to Melbourne part heard on 15 March 2018, Mr A J Patton of counsel appeared on your behalf. He tendered the following further material:
(a)An Addendum Report from Dr Cunningham dated 5 March 2018 (Exhibit “D”);
(b)Police Attendance Register (Exhibit “E”).
20 Based on such material and the various submissions made by both your counsel, I note the following:
·You were born in Victoria and raised by your mother and stepfather. Your counsel asserts that you did not have a role model growing up and was evicted from the home of your mother and stepfather at the age of fourteen. You are the oldest of two stepbrothers and one stepsister. You also had an older brother who committed suicide, and this has been a significant source of mental anguish for you.
·You met your biological father at the age of twenty-one, and at the time of the subject offending was residing with your biological father, who was sick and suffering from Emphysema.
·You have two children aged fourteen and thirteen, but have no involvement in their lives.
·Apparently your mother suffers mental health issues and has had intermittent separations from your stepfather.
·Your counsel submitted that you had no sound employment at the time of the offending.
The circumstances of the offending
21
On 20 February 2018, your counsel advised the Court that at the time of the offending involving recklessly causing injury (Indictment No. H11046847), you were visiting your parents’ home, that is, your mother and stepfather. You became aware of an argument between the complainant (that is,
Karoly Incze), and a young nephew of yours aged fourteen years at that time.
22
Apparently you were under the impression that the complainant was a paedophile and you went around to his place to confront him about picking on children. You have instructed your counsel that you were drunk at that time. Your counsel accepted that you were on a community correction order (made on 21 November 2016) when you committed such offending on
22 March 2017.
23 In relation to the second offending, your counsel on the 20 February 2018 informed the Court, that you had instructed her that at the time of such offending (involving reckless conduct endangering life and being a prohibited person possessing a firearm -Indictment No. H11362068), that you had been “jumped” by three to four people and hit over the head with a baseball bat on this day. In this respect, reference was made to your Record of Interview and, in particular, questions 30 to 36.
24 Furthermore, you instructed your counsel that one of the “victims” – that is, those who were living at 4 Olivia Road, Morwell, had arranged for the three to four guys to jump you. Further, you instructed your counsel that you grabbed the gun from the shed after you were “jumped” and that you then went around to the house of the victims and fired shots towards that house thinking that your assault had been caused by one of the people in that house. Your counsel also asserted that you accepted that you fired shots – albeit not directly at the house but in the direction of the house. Again, your counsel informed the Court that you instructed that you were intending to go back to the property and have a fight, not to get the gun and shoot it, when you said the words “just you wait two minutes”.
25
Your counsel accepted that the extent of such detail was not told to the police at the time of your Record of Interview and, indeed, accepts that you refused to make any statement to the police, or at any time implicated those living at
4 Olivia Street, Morwell. However, again, you apparently instructed your counsel that you did have some conversation with the police the night that you underwent your interview, saying one of the neighbours was one of the people that jumped you. Of course, a search of the premises situated at 4 Olivia Street, Morwell, failed to reveal any gun.
26 Your counsel also submitted that based on some of the medical material (see Exhibit “B”), you were being assessed as to whether you had a possible Acquired Brain Injury (“ABI”). In this sense, you had complained of vertigo and blurred vision. There has also been a diagnosis, apparently, of Schizophrenia in the past.
27 The Court pointed out to your counsel that there was no clear evidence that you had an ABI and, more particularly, whether such injury played any role in the circumstances of any of the offending. Furthermore, as the matter now stood, I could only sentence you on the basis of the prosecution opening, which you agreed was an accurate statement at the beginning of the plea.
28 I pointed out to your counsel that if there was further relevant material to be added or, indeed, certain aspects of the prosecution opening were contested, the matter would have to be adjourned and the plea may well end up to be a “contested plea”. Furthermore, I pointed out that there was no evidence from Dr Cunningham that you had suffered an ABI and, indeed, I would require expert opinion as to whether you suffer such a condition and, if so, any relationship between that condition and your offending and, indeed, how that may impact on any particular sentence.
29 On 20 February 2018, your counsel described you as being “in and out of custody” for your entire life and accepted that your criminal history was a “terrible history”.
30 However, your counsel submitted that you had largely complied with the community correction order which commenced on 21 November 2016 and, indeed, you had completed fifteen hours of the 180 hours of work despite your physical and mental health issues, had attended all supervision appointments and completed the occupational health and safety training, and were attending judicial monitoring. Furthermore, it was submitted that there were pleas of guilty to the subject offending, which is some evidence of your remorse. Your counsel noted that apparently you had been a peer educator since your incarceration.
31
Your counsel, on 20 February 2018, submitted that an appropriate disposition would be a combination sentence of time served, together with a community correction order. Reference was made to the well-known decision of
Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308. Ultimately, your then counsel, Ms McFarlane, applied to have the matter adjourned for further plea hearing to obtain a further opinion from the consultant psychologist,
Dr Cunningham. Such application was granted.
32 When the matter came on again on 15 March 2018, your new counsel,
Mr A J Patton, put to the Court, on instructions from you, that Mr Drew Bunker was in possession of a firearm and there was an assault on you prior to the subject offending. Furthermore, you instructed your counsel that you remembered where your father’s gun was, and thereafter obtained the gun and committed the offending. In this sense your counsel submitted that you wished to have this part of the agreed facts to include what you say were the preceding events to your offending on that night.
33 Again, I pointed out to your counsel, unless there was agreement in relation to the prosecution opening, there would have to be a contested plea if these other matters were said to be relevant factors to the subject offending. After such discussion, your counsel applied to seek further instructions from you and I was informed that he was instructed that the matter would proceed on the basis of the agreed prosecution opening.
34 Reference was made to the opinion supplied by Dr Cunningham, initially in his first report dated 5 June 2017 and in an Addendum Report dated
5 March 2018, which had been obtained in-between the first hearing of the plea and the later hearing on 15 March 2018.
35 Dr Cunningham is of the opinion that you were not suffering from a mental illness at the time of the offending, however, he was of the opinion that you meet the criteria for a diagnosis of Autism Spectrum Disorder, which is a Neurodevelopmental Disorder that results in impairments in adaptive behaviour, communication and emotional regulation. Dr Cunningham was of the opinion that you have had such condition since being a young child.
36 Furthermore, Dr Cunningham was of the opinion that it was not possible to “draw a realistic connection” between the condition of Autism Spectrum Disorder and the offence behaviour. In particular, Dr Cunningham states:
“In my opinion, Mr Saffron’s Autism Spectrum Disorder provides a context to understand his tendency for miscommunication and conflict with others as well as his difficulty managing emotional states. Mr Saffron has impairments in his ability to consider the perspective of others. In my opinion, this contributed to him not understanding the perspective of the victims with regard to the noise he was making. This led to him believing he had been treated unfairly. Mr Saffron has a history of tantrum like behaviour during times of stress. However, in my opinion, Mr Saffron’s emotional regulation impairment cannot fully explain his offence behaviour. Mr Saffron’s account of the offence differed from the Prosecution Summary. He stated that he had been assaulted by the victims and discharged the gun into the air as a warning. Mr Saffron’s explanation does not convey a tantrum like explosion of emotions. Instead, Mr Saffron’s explanation conveys a sense of fear and belief that he had to protect himself from further attack. In my opinion, this paranoia and inability to read the cues of others is consistent with Mr Saffron’s Autism Spectrum Disorder. However, the difference between Mr Saffron’s report and the agreed upon facts makes analysis of his mental state at the time difficult. In my opinion, it is not possible to clarify whether there was a realistic connection between his offence behaviour and Autism Spectrum Disorder.”
37 It is also to be noted that Dr Cunningham understandably states that given your account of the offence paints you as the “victim of attack”, your “level of remorse is limited”.
38 Your counsel also referred to the following evidence from Dr Cunningham in support of his submission that principles 5 and 6 of the well-known decision of R v Verdins & Ors (2007) 16 VR 269 have application. Dr Cunningham states in his Addendum Report that:
“Mr Saffron’s Autism Spectrum Disorder would not deteriorate in gaol. However, he is prone to abuse and manipulation given his impairments in reading the cues of others. Further, long periods of incarceration would likely further impair his ability to live independently in the community.”
39 On 15 March 2018, your then counsel again submitted that time served (which I was informed was now 303 days) together with a community correction order, would be an appropriate disposition. In particular, he highlighted, as did his predecessor, that there has been some compliance with the CCO ordered on 21 November 2016. Furthermore, it was submitted that a community correction order would be an appropriate vehicle to address issues of alcohol and drug use and supply appropriate supervision.
Response of the prosecution
40 Counsel for the prosecution submitted:
(a)A combination disposition of imprisonment and a community correction order is not appropriate in the circumstances – even allowing for the period of pre-sentence detention already served;
(b)Reckless conduct endangering life is a particularly serious offence, bearing in mind there were a number of people nearby including young children;
(c)You have prior convictions for similar-type offences;
(d)You were in possession of a firearm which was illegal, given that you were a prohibited person due to the ongoing community correction order;
(e)You have had a multiple number of community-based orders and community correction orders resulting in many breaches.
41 Counsel for the prosecution submitted that you have had many opportunities in the past to help yourself, but all has been to no avail. It was submitted that general deterrence, specific deterrence and denunciation are predominant factors, and that notwithstanding the early plea and the autism condition, there should be an immediate period of imprisonment ordered with a non-parole period set.
42
Counsel for the prosecution did accept that based on the opinion of
Dr Cunningham, imprisonment for you would be more onerous given your diagnosis of Autism Spectrum Disorder and, furthermore, that the Court could “probably” conclude that imprisonment may cause further deterioration in your mental health.
Conclusion
43 As I have already recorded, the Court will sentence you on the basis of the prosecution’s summary of the facts surrounding the offending. You initially agreed to this course when the matter was called on, and after discussion with your second counsel on 15 March 2018, confirmed that the matter should proceed on the basis of the prosecution’s agreed statement of facts.
44 I consider that the discharge of the firearm by you in the direction of the Bunker household – which constitutes the charge of reckless conduct endangering life – is a serious offence. As you were well aware, people occupied those premises at the time you committed the shooting and, indeed, two of the occupants were very young children. On the material before me, the only “provocation” leading to that offence was the altercation between you and members of the Bunker family in relation to you turning down music.
45 As I have recorded, you have previous convictions of reckless conduct endangering serious injury. By identifying such prior offending, there is no record of the circumstances giving rise to those offences.
46
I accept that the offence of you being a prohibited person possessing a firearm is not as significant, as such offence arises from being in possession of a firearm after being placed on a community correction order on
21 November 2016 and which was current at the time of the subject offending.
47 I also consider the offence of causing injury recklessly in circumstances where you punched and head-butted Karoly Incze, is also of a relatively serious nature. Seemingly, the only reason you attacked that person was that you believed him to be a paedophile and he was talking to a nephew of yours. Seemingly, you did not know him at all prior to that time.
48 One only has to read the Victim Impact Statement to understand how that has left both the complainant and, indeed, his wife, in a frightened state, wary of anyone who comes to their door, or wary of people approaching them in the street.
49 I also consider that such offending, again, has to be seen in the context of your record, which includes convictions for recklessly causing injury (one of which occurred on 16 May 2014), intentionally causing injury, unlawful assaults and assaulting police.
50 Of course, the offending on 22 March 2017 and 15-16 May 2017, was during the currency of a community correction order made approximately four months earlier (that is, in respect to the offending on or about 22 March 2017). As counsel for the prosecution submitted, an aggravating feature of the offending is that it occurred relatively shortly after the ordering of yet another community correction order.
51 In mitigation of such offending, I do accept that your pleas of guilty to the offending were at the earliest possible time. In particular, your plea of guilty has the utilitarian effect of saving the Court the time and cost of a trial (see Phillips v R [2012] VSCA 140 at paragraph [36]). In particular, your plea of guilty to the offending obviated the need for the complainants to give evidence at a trial and to have to relive the circumstances of the offending in a public forum.
52 It is always a question for the sentencing judge whether remorse or willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from the plea of guilty (again, see Phillips v R (op cit) at paragraph [96]). I tend to the view expressed by Dr Cunningham in his later report that bearing in mind your assertion that you were the victim of attack, your level of remorse is limited. Indeed, other than the plea of guilty, there is no real evidence of remorse.
53 I also accept that you do suffer from Autism Spectrum Disorder, as diagnosed by Dr Cunningham, and that so-called principles 5 and 6 set out in R v Verdins & Ors (2007) 16 VR 269 at paragraph [32] are engaged. Principles 5 and 6 read:
“5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
54 In particular, I do accept that the impairments in adaptive behaviour, communication and emotional regulation, are significant for one who has to endure prison life. Perhaps not as strong, long periods of incarceration would impair your ability to live independently in the community.
55 I consider that the relevant sentencing factors are general deterrence, specific deterrence, denunciation of the offending, and protection of the community. Furthermore, I note that Corrections do not recommend a community correction order given your past history of breaching such orders, or community-based orders, or suspended sentences. Again, as I have noted, you were not that far into a community correction order when the subject offending occurred.
56 Considering the seriousness of the offending and your past criminal record, I do not consider that a period of imprisonment followed by a community correction order is appropriate. In all the circumstances, I intend to convict you of each of the offences and order an immediate period of imprisonment. Please be upstanding.
(a) In relation to Indictment No. H1362068, you are:
(i)convicted of reckless conduct endangering life and sentenced to a period of imprisonment of two years eight months. This is the base sentence;
(ii)in relation to the offence of a prohibited person possessing a firearm, you are convicted and sentenced to a period of imprisonment of six months; and
(b) In relation to Indictment No. H11046847:
(i) in respect to the offence of recklessly causing injury, you are convicted and sentenced to a period of imprisonment of twelve months.
(c) The Court directs that two months of the sentence pertaining to Charge 2 on Indictment H11362068, and eight months of the sentence pertaining to the offence of recklessly causing injury on Indictment No. H11046847, are to be served cumulatively upon each other and upon the sentence imposed in relation to Charge 1 of Indictment No. H11362068.
57 The total effective sentence is three years and six months' imprisonment, and there will be a non-parole period of two years and three months.
58 I declare that you have served 330 days up to today as pre-sentence detention, and such period should be administratively deducted from this sentence as time already served.
59 I declare, save for your pleas of guilty, I would have ordered a period of six years’ imprisonment.
60 I make the orders for forfeiture and disposal as sought by the Prosecution.
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HIS HONOUR: Anything arising out of that ladies and gentlemen,?
MR STOUGIANNOS: No Your Honour,.
MS McFARLANE: No Your Honour.
HIS HONOUR: Yes, counsel do you want to approach your client?
MS McFARLANE: If I may Your Honour.
HIS HONOUR: Yes I'll allow counsel to approach her client briefly.
MS McFARLANE: Thank you Your Honour. Thank you Your Honour.
HIS HONOUR: Yes take the prisoner thank you.
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