Director of Public Prosecutions v Savage

[2017] VCC 793

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00196

DIRECTOR OF PUBLIC PROSECUTIONS

v

SELWYN SAVAGE

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 May 2017
CASE MAY BE CITED AS:	DPP v Savage
MEDIUM NEUTRAL CITATION:	[2017] VCC 793

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Allison
For the Accused	Mr R.W. Backwell

HIS HONOUR:

1Selwyn Savage, you are to be sentenced on one charge of reckless conduct endangering life and one charge of common assault.  Applicable maximum sentences are ten years' imprisonment for reckless conduct endangering life and five years' imprisonment for assault.

2When interviewed by police on 10 May 2016, you made false denials.  A contested committal began on 6 February 2017.  Your matters resolved on the following day and you entered pleas of guilty; but the hearing continued as to other offenders, who were committed for trial on 9 February.

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

4At your plea hearing, which ran on 10 April, Ms Flynn for the Crown tendered a written Crown opening, two booklets of photographs mainly depicting relevant firearms, scenes and aftermath of offending and the victim impact statement of Samantha Menzies.  Ms Flynn played CCTV footage showing part of the overall offending.

5Mr Backwell, for you, provided an outline of plea submissions and made oral submissions.

6The circumstances of offending are set out in the tendered Crown opening. My own summary may be relatively short.

7You and Bruce Savage are brothers.  You were involved with others in shooting episodes which occurred in daylight hours of 10 March in the streets of Corio and Norlane.   Others involved included your nephew, Justin Millner.  Millner has been sentenced by me.

8In the approximate two years prior there seems to have been developing grievance between Bruce Savage and a man named Aaron Burnie.  The Crown opening states that this was related to drug trade within the Geelong area.

9During the afternoon of 10 March, you and others including relatives were at the home of Bruce Savage in Dearborn Parade, Corio.  There were comings and goings.  Things accelerated at 6 pm.  Bruce Savage, Selwyn Savage and another man named Deery, left in a Ford sedan.  Bruce Savage had a long arm rifle.

10Soon after Bruce and Selwyn Savage, Justin Millner and Dearie were seen outside an address in Donnybrook Road.  This seems to be premises related to Burnie.  At least one firearm, a long arm, was seen.

11At 6.12 pm, CCTV footage shows Justin Millner driving a maroon Holden in Dearborn Parade; Bruce Savage is a passenger; he had a long arm rifle.  At 6.14 an orange utility driven by Burnie, with a passenger named Graham, is seen in Dearborn parade.  The maroon Holden pulls up next to it and slightly forward.  There is a verbal altercation.  Bruce Savage discharges the rifle, striking the windscreen of Burnie's car.  Almost immediately, Millner drives off quickly.

12Paragraph 23 and 24 of the Crown state as follows:

"Bruce Savage and Millner were chased Burnie and Graham in the utility through residential streets and Corio and Norlane where numerous shots were exchanged between both vehicles by Bruce Savage as Burnie and Millner drove the vehicles.  Witness or witnesses, it is not clear, reported seeing the vehicles driving at high speed and hearing the gun fire.

13"Millner returned to Donnybrook Road and dropped Bruce Savage off at his daughters address at approximately 6.19 pm.  He drove around the corner into Anakie where he was intercepted by police.  A search of his vehicle resulted in three fired bullet cases being located.  The accused was arrested and conveyed back to the Geelong police station for interview".

14There was soon after further shooting between you, Selwyn Savage and Dearie 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 Dearie.  Witnesses reported gun shots and made observations of the vehicles chasing each other around the streets of Norlane whilst exchanging gun fire.  At times, the vehicle driven by Burnie and Graham was chasing the vehicle being driven by Selwyn Savage and at other times it was the other way around".

15At about 6.28 pm you, Selwyn Savage, the driver of the Ford, failed to negotiate a turn and struck an oncoming vehicle, which then spun into a power pole.  You drove off.  It was then that you committed the assault upon Samantha Menzies, Charge 3 on the indictment.  You drove to a nearby Kentucky Fried Chicken Deery ran off.  You went to the car of Samantha Menzies, got in and in effect forced her to drive you away.  She took you to a Shell service station in North Geelong; but reported what had happened to police soon after.  You were arrested in the toilets there.

16Burnie and Graham were arrested at park land in Norlane.  Both vehicles had significant bullet damage.

17Bruce Savage was arrested at his home on the next day.  Police found and seized a .22 rifle, a pellet handgun and assorted ammunition.

18Deery is now deceased.

19As I understand, Burnie and Graham face trial.

20The victim impact statement of Samantha Menzies describes the fear she felt and its aftermath.  She suffers anxiety and depression, receiving treatment for this.  As a single mother, she has become more fearful and more security conscious, particularly at night.  Her children are similarly affected.  They were not in her car when you offended.   Samantha Menzies has trouble sleeping.  She states that the offence has had a big effect upon her daily activities. 

21The victim impact upon Samantha Menzies must be taken into account of my sentence of you.

22You are a 37 year old man awaiting sentence in remand custody.

23You were born in New Zealand and came here when ten years old.  You left school at Year 8 and after a troubled adolescence went to Queensland when 19 or 20.  There was a long settled period.  You worked, were in a stable relationship and had a child; he is now 12.

24This picture is supported by the pattern of your criminal history.  There are a number of appearances between January 1994, when you were aged only 14, and November 1999 when aged 20.  Many are in the Children's Court.  There are offences of dishonesty, drug offences and traffic offences.

25In July 1997, aged 18, you received youth training centre detention for offending which included possessing an imitation pistol without licence.  The striking feature of your history is its age.  It is almost 20 years since you last offended.

26In 2015, your life became unstable again. Your relationship had ended, you lost a brother to suicide; there was drug use.  In 2015, you returned to the Geelong area where your brother and other members of the family lived.  You had custody of your son.  I note that your parents still live in Queensland. They both have a number of health problems.

27This, that is the movement back to Geelong and its circumstances is the context for your involvement in the offending before me.  I accept Mr Backwell's submission of "influence of family connection".

28You have been in remand custody since arrest in March 2015, now 422 days.

29MR BACKWELL:  Twenty-one is agreed.

30HIS HONOUR:  Is it, thank you.  Four-hundred and twenty-one days.

31You kept access to your son, however, he did not cope well and has returned to Queensland.  He now lives with his aunt, your sister-in-law.  You have daily phone contact.

32You have not taken up Australian citizenship and therefore there is the risk of deportation.  However, your residency status has not been cancelled.  This is unlike your brother, Bruce Savage.  Mr Backwell told me, and I accept, that your son's mother would resist him going to New Zealand with you.  Accordingly, there is this uncertainty as to your immigration status and possible impact upon your relationship with your child.  I find that this will make your continued imprisonment more difficult, compared to others.

33Thus far in custody, you have been affected by lockdown conditions, which ran over about three months.  You have been placed at Fulham prison for about nine months, where you have functioned well.  You have a job as ground keeper and study horticulture. 

34I stated as follows when sentencing Justin Millner, similarly relevant to your involvement.  A 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.

35As also stated to Justine Millner,  I bear in mind that I do not find that you, Selwyn Savage, were actively involved in drug trafficking.  The perpetrators showed contemptuous disregard for the safety, wellbeing and peace of the community.  There were a number of shots fired, including in the episode, particularly involving you and Deery.  Also related to the danger posed, you collided with another driver causing both damage and risk.

36It was put in the plea hearing of Bruce Savage, which also ran on 10 April, that it was thought that his daughter had been threatened and perhaps taken by Burnie.  This was not the case.  Such belief may in part explain what happened but is of little mitigation.

37The circumstances here 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.  I accept that family relationship played a role in your involvement.  However, ultimately, your sentence must reflect that you participated, performing an important role, in extravagantly anti-social 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.

38However, there are also relevant moderating factors, which should go to reduce that sentence compared to what the objectively viewed and adverse matters might otherwise require.   They include the following.

39(1)  Your plea of guilty and cooperation.

40(2)  Your personal history and circumstances.  That would include the difficulties of your upbringing; but also the circumstances of you coming back to Victoria and the hardship you will confront in prison  related to your future and to that of your son. 

41(3)   That you have not offended since 19 or 20 indicates that you have a capacity for rehabilitation.  I would find genuine prospects of that.

42(4)  Mr Backwell raised the principle of parity and thereby comparison with my sentence of Justin Millner. He is considerably younger, aged 26; and, given my findings stated in sentence of him, played a less than central or senior role. As to that, Mr Backwell's outline pointed to your role of driver rather than shooter.  It is the same for Millner.  In the broad sense of these events and the criminality of them, I see minor mitigation in that.   You have a less recent criminal history.  It is significant that Millner pleaded guilty at a considerably earlier stage.  I sentenced him whilst you and your brother awaited a then contested committal.  He made admissions and cooperated very early.  His cooperation included making a police statement.  You must also be sentenced for your offences against Samantha Menzies. 

43As is often the case, strict parody is not applicable.   I have decided that, both arising out of comparison with Justin Millner and because of factors individual to you, your sentence will be longer than his but not disproportionately so.  As to the 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 catalysts for what happened.

44I have also attempted to take into account sentencing practices for this type of offending, bearing in mind, however, that there are important factors individual to your case.  Ms Flynn provided to me the case of Zogheib vs The Queen [2015] VSCA 2014.

45After considering and attempting to weigh what I see to be the relevant matters, I sentence you as follow.  Stand up please.

46On Charge 1, conduct endangering life, you are sentenced to imprisonment for three years and eight months.

47On Charge 3, assault, you are sentenced to 6 months' imprisonment. 

48I direct that two months of that sentence be served cumulatively upon the sentence for Charge 1. 

49That is a total effective sentence of three years and ten months.  I set a minimum term before eligibility for parole of two years and two months.  I declare under s.18, presentence detention of 421 days.

50Had you not pleaded guilty I would have imposed a sentence of six years, with a minimum term of three and a half years.  The arithmetic would be apparent to you.  Take a seat.  Is there anything else I need to do?

51MS ALLISON:  No.

52MR BACKWELL:  No, Your Honour.

53HIS HONOUR:  No, all right, good.  Now, Mr Savage could be taken into custody.

54MR WRAITH:  Your Honour, I don't appear to have a transcript of the plea, I don't know whether.

55HIS HONOUR:  Neither have I but we can ‑ ‑ ‑

56MR WRAITH:  It was made by ‑ ‑ ‑

57HIS HONOUR:  In the circumstances I think you will need one, will you not.  I direct a transcript of the plea.

58MR WRAITH:  Pardon?

59HIS HONOUR:  I direct a transcript of the plea hearing.  What about Millner?

60MR WRAITH:  Well, yes, I suppose.

61HIS HONOUR:  What it is giving about Millner is, that I was asked to make finding and apply of course, the standard of proof prescribed in - I have forgotten the name, Storey, as to the time at which he became aware that guns and shooting were involved and there is a distinction between his circumstances and involvement, the stage of it; although I think I was pretty kind to him and both Selwyn Savage - no, I have put that the wrong way.  The circumstances of involvement of Selwyn Savage and Justin Millner appear to me at the moment to be different to your circumstances.  It is one of the reasons why I made the comment, the remark towards the end of my sentence so I think you should have a look at the transcript.

62MR WRAITH:  Of both.

63HIS HONOUR:  Of both and so we will direct that and we will provide to you the revised transcript of Millner and this matter.  So if you contact Ms Merrington over the next few days.  It is the 11th, that is ‑ ‑ ‑

64MR WRAITH:  Yes, next Thursday.

65HIS HONOUR:  ‑ ‑ ‑ next Thursday.  All right, good, thank you.  You are excused, I will now move on.

66MR BACKWELL:  As Your Honour pleases.

67MS ALLISON:  Your Honour, thank you.

68HIS HONOUR:  Thank you for your assistance today.  Yes, and also the transcript of the plea of Selwyn and Bruce Savage.  I am told that there might be some difficulty in getting it in time.

69MR WRAITH:  (Indistinct words).

70HIS HONOUR:  Well, it has got to be done by 11 May.

71MR WRAITH:  Right.

72HIS HONOUR:  You have been involved in this for many years.  These days it seems to be more of an administrative system than a criminal justice system, have you noticed that?

73MR WRAITH:  You were mirroring my thoughts.

74HIS HONOUR:  It is very apparent, is it not?

75MR WRAITH:  Yes.

76HIS HONOUR:  That administration has taken over from what it used to be - we are voices in the wilderness, Mr Wraith.  All right, so we are going to do our best to get those things to you.  We can certainly get you the sentence of Millner and this sentence today. Thank you, you are excused.

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