Director of Public Prosecutions v Savage

[2017] VCC 1146

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00197

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRUCE SAVAGE

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2017
DATE OF SENTENCE:	4 July 2017
CASE MAY BE CITED AS:	DPP v Savage
MEDIUM NEUTRAL CITATION:	[2017] VCC 1146

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Accused	Mr C. Pearson

HIS HONOUR: 

1Bruce Savage, you are to be sentenced for one charge of reckless conduct endangering life and one charge of using a firearm as a prohibited person.  You are also to be sentenced for the summary offence of possessing cartridge ammunition without licence.  Applicable maximum sentences for the indictable offences are ten years' imprisonment for reckless conduct endangering life and for prohibited person using a firearm.  The summary offence attracts a maximum fine of 40 penalty units.

2When interviewed by police on 11 May 2016, you made false denials.  A contested committal began on 6 February 2017.  Your matter resolved on the following day and you entered pleas of guilty.  The hearing continued as to other offenders who were committed for trial. 

3You receive the benefit of your plea of guilty and the level of cooperation  that short history of the proceeding shows.  Your pleas have facillitated the interests of justice.

4At your plea hearing which ran on 10 April, 11 May and today, 4 July, Ms Flynn for the Crown tendered a written Crown opening and two booklets of photographs mainly depicting relevant firearms, scenes and aftermath of the offending.  Ms Flynn played CCTV footage showing part of the offending.  Mr Pearson for you tendered the report of an orthopaedic surgeon, John O'Brien, with associated hospital records related to injuries you suffered in a 2013 motor vehicle accident and the psychological report of David Ball dated 5 April 2017.  Mr Pearson also provided an outline of plea submissions.

5The circumstances of offending are set out in the tendered Crown opening which is Exhibit A.  My own summary may be relatively short.  You and Selwyn Savage are brothers.  You were involved with others in  a shooting episode which occurred in daylight hours on 10 March 2016 in the streets of Corio and Norlane.  Others involved in the overall activity included your nephew, Justin Milner.  Milner and Selwyn Savage have been sentenced by me.

6In the approximate two years prior, there seems to have been developing grievance between you, Bruce Savage, and a man named Aaron Burnie.  The Crown opening states that this was related to drug trade within the Geelong area. 

7During the afternoon of 10 March, you and others including relatives were at your home in Dearborn Parade, Corio.  There were comings and goings.  Things accelerated at 6 pm.  You, Selwyn Savage, and another man named Deary left in a Fort sedan.  You had a long rifle.  Soon after, you, Selwyn Savage, Justin Milner and Deary were seen outside an address in Donnybrook Road.  This seems to be premises related to Burnie.  Your daughter also lived in that street.  At least one firearm, a long arm, was seen.

8At 6.12 pm, the CCTV footage shows Justin Milner driving a maroon Holden in Dearborn Parade.  You are the passenger.  You had a long arm rifle.  At 6.14 pm, an orange utility driven by Burnie with a passenger named Graham is seen stationary in Dearborn Parade.  The maroon Holden pulls up next to it and slightly forward.  There is a verbal altercation.  You discharge the rifle, striking the windscreen of Burnie's car.  Almost immediately, Justin Milner drives off quickly. 

9Paragraphs 23 and 24 of the Crown opening state as follows: 

"Bruce Savage and Milner were chased by Burnie and Graham in the utility through residential streets in Corio and Norlane where numerous shots were exchanged between both vehicles by Bruce Savage and Graham as Burnie and Milner drove the vehicles.  Witness or witnesses, it is not clear, reported seeing the vehicles driving at high speed and hearing the gunfire.  Milner returned to Donnybrook Road and dropped Bruce Savage off at his daughter's address at approximately 6.19 pm.  Milner drove around the corner into Anakie Road where he was intercepted by police.  A search of his vehicle resulted in three fired bullet casings being located."

10Soon after, there was further shooting between Selwyn Savage and Deary in one car, the Ford sedan, and Burnie and Graham in the orange utility.  Paragraph 25 of the Crown opening states: 

"Burnie and Graham were involved in a further confrontation where gunshots were exchanged between the ute being driven by Burnie and the silver-coloured Ford being driven by Selwyn Savage and Deary.  Witnesses reported gunshots and made observations of the vehicles chasing each other around the streets of Norlane whilst exchanging gunfire.  At times, the vehicle being driven by Burnie and Graham was chasing the vehicle being driven by Selwyn Savage and at other times, it was the other way around."

11At about 6.28 pm, Selwyn Savage failed to negotiate a turn and struck an oncoming vehicle which then spun into a power pole.  He drove off.  It was then that he committed Charge 3 on the indictment, assault of Samantha Menzies.  You were not involved.  Selwyn Savage, Burnie and Graham were arrested at different locations not long after.  You, Bruce Savage, were arrested at your home on the next day.  Police found and seized a .22 rifle, a pellet handgun and assorted ammunition.  The ammunition is the subject of the summary offence before me.

12Deary is now deceased.  As I understand, Burnie and Graham face trial.

13You are a 41-year-old man presently awaiting this sentence in custody.  You came to Australia from New Zealand when 12.  Your upbringing was affected by violence within your family,  mainly perpetrated by your father.  Your parents separated when you were still young.  You remained close to your mother and have little contact with your father.  Your mother, who suffers poor health, lives in Queensland.  You have four remaining siblings.  A brother died in 2015.

14You left school at 14 in Year 8.  However, you were consistently employed for many years, usually in the motor vehicle service industry.  In 2013, you suffered bad injuries, spinal injuries and a broken arm, in a motorcycle accident.  You were then 37.  There are lasting residual effects.  You have not returned to work.  As stated, medical reports as to this have been tendered in evidence.

15You have two adult children from different relationships.  You are close particularly to your daughter.  I have referred to her in my earlier summary of this offending.

16You have a long history of alcohol use beginning in early teen age.  You stopped drinking about five years ago.  However, you have since developed an addiction to ice amphetamine.  Mr Pearson sought to relate this at least in part to pain relief associated with your motor vehicle accident injury and also the impact of them upon your work capacity.  It was also put on your behalf that this offending occurred in the context of drug abuse and thereby indebtness to Burnie.  It was put that you were using ice amphetamine on the day, that you believed your daughter had been threatened and taken by Burnie and then that your brother had been shot.

17I am guarded about the particular detail of this, however accept that your relationship with Burnie had become poisonous and, in that context, you were affected by drug use and concern for your daughter's situation.  Of course much of this had been brought about by your relationship with Burnie.  The mitigation is very limited.

18You have an extensive criminal history running from 1993 when you were 17.  In recent years, driving offences seemed to predominate.  There are over time offences of dishonesty, violence and firearm offences.  There are drug offences from 2013.  You are a prohibited person under Charge 2 on the indictment because of aspects of your criminal history.  Your residency visa has been cancelled and I am told you will not resist deportation upon parole release.  I find that, given your life in Australia since 12, your family here and lack of support in New Zealand, this is a relevant hardship both in terms of that outcome and how you serve custody before that.  As stated, you are close to your mother, who is frail, and children, particularly your daughter.  Imprisonment thus far has been made more difficult by your placement in protection.  

19Psychologist David Ball diagnoses antisocial personality disorder.  Such a condition, he states, can lead to debilitating depressive symptoms in mid and later life.  As I have stated in my sentences of Justin Milner and Selwyn Savage:  "Simple description emphatically states that this was  particularly serious and dangerous offending, a bad example of this crime.  It occurred in daylight hours and along residential streets.  It also occurred in a quite sinister criminal context.  The perpetrators have showed contemptuous disregard for the safety, wellbeing and peace of the community."

20You have significant prior offending.  There were a number of shots fired including in the episode involving you and Milner.  The circumstances make relevant sentencing considerations of deterrence,  both specific but particularly general deterrence, moral culpability, a strong need to condemn and the need for appropriate punishment.  Your sentence must reflect that you participated, performing an important,   I would find, senior role in extravagantly antisocial criminal behaviour.  Public protection is also raised.  You and particularly others should be deterred from such conduct to protect the community's wellbeing.  There must be imprisonment of some significant length.

21There are also relevant moderating factors.  They include the following: 

(1) Your plea of guilty and cooperation.

(2) Your personal history and circumstances.  These would include your present situation in imprisonment and facing deportation.

(3) I am guarded about your prospects for rehabilitation.  You have a significant criminal history.  The nature and circumstances of offending were intrinsically antisocial.  You have a drug dependency.  As stated, I am guarded about prospects for rehabilitation but do not utterly discount them.

(4) The question of parity or disparity is inevitably raised and led to further submissions by Mr Pearson today.  There are differences between you and the two co-offenders I have sentenced.  For example, you are older than Milner who pleaded guilty and cooperated very early.  I find you to have played a senior role in the offending.  In sentencing Selwyn Savage, I pointed out:  "As to the broad circumstances of offending, I see Bruce Savage as playing the senior role.  For example, it was his aggrieved relationship with Burnie and,  as I was told, the perception of harm to his daughter that are said to be the catalyst for what happened."  You have a longer criminal history than both co-offenders and, particularly in recent years, your brother Selwyn Savage.  I bear in mind that deportation seems certain for you as opposed to your brother.  I have referred to the hardship of that for you.  Your brother's situation on that relative to his son was dealt with in my sentence of him.

22Ultimately, I have come to the view that your sentence must be longer than both of your co-offenders.  However, you are entitled that I have some just reference in sentencing you to what I imposed upon them.  After considering and weighing what I see to be the relevant matters, I sentence you as follows.

23Stand up please.

24On Charge 1, reckless conduct endangering life, you are sentenced to imprisonment for four years and six months.

25On Charge 2, prohibited person using a firearm, you are sentenced to two years' imprisonment.

26On the summary offence, I convict and fine you $300.

27I direct that four months of the sentence on Charge 2 be served cumulatively upon the sentence for Charge 1.  That is a total effective sentence of four years and ten months.  I set a minimum term before eligibility for parole of three years.

28I declare under s.18, 481 days of pre-sentence detention.

29I have directed some but moderate cumulation on Charge 2.  That you used the firearm as a prohibited person in the circumstances you did requires that.  However, I also bear in mind that the act or acts of firing the gun played a major part in the conduct making out Charge 1. 

30Are there any other matters I need to deal with?

31MR DOYLE:  No, Your Honour.

32MR PEARSON:  6AAA declaration.

33MR DOYLE:  Yes, 6AAA, yes.

34HIS HONOUR:  Yes, just excuse me.

35Had you not pleaded guilty, I would have imposed a sentence of seven years with a minimum term of five years.

36Take a seat please.  There is no application for a forensic sample, that's been taken and it's on the database, is it?

37MR DOYLE:  No, I understand that - yes, that's right, Your Honour, it's automatic.

38HIS HONOUR:  All right.  Well, yes, nothing else?

39MR DOYLE:  No, Your Honour.

40MR PEARSON:  No, Your Honour.

41HIS HONOUR:  All right, thank you for your assistance on each occasion and today.

42MR PEARSON:  Thank you, Your Honour.

43HIS HONOUR:  So I'll adjourn till - what time tomorrow are we.  We'll adjourn.

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