Director of Public Prosecutions v Schweizer
[2016] VCC 772
•27 April 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01928
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL SCHWEIZER |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 April 2016 | |
CASE MAY BE CITED AS: | DPP v Schweizer | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 772 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms K. Churchill | |
| of Public Prosecutions | ||
| For the Accused | Mr I. Polak |
HIS HONOUR:
1 Paul Hardy Schweizer, you have pleaded guilty to one charge of recklessly causing serious injury (Charge 1), and one charge of possessing a firearm whilst being a prohibited person (Charge 2). The maximum penalty for recklessly causing serious injury is 15 years' imprisonment. The maximum penalty for being a prohibited person in possession of a firearm is 10 years' imprisonment. The prosecution made application for the forfeiture of certain ammunition found. The making of that order was not opposed.
2 The circumstances of your offending are set out in detail in the Plea Opening which was tendered as Exhibit A. It was agreed by your counsel at the plea hearing that I would sentence on the basis of the facts set out in the Plea Opening rather than the facts as set out in paragraph 3 of the plea submissions which were tendered as Exhibit 4. That is important because in that paragraph it was put that the pen gun was produced by the victim and that it went off in the course of a struggle. This version is clearly materially different than the circumstances as set out in the Plea Opening on which basis I will be sentencing you.
3 On 17 April 2013 at 6.30 pm the victim was at his home in Seaford. At that time you also lived in Seaford and had known the victim for about six years. Approximately six to eight weeks before this offending, the victim had bought some marijuana from you for $20. He did not have the money at the time and about a month later he paid off $10 to you after you had come to his house.
4 On this evening of the offending, you went to the victim's unit and loudly banged on the door. You yelled out for him to open the door. The victim opened his door and you stepped into his house asking for your money and telling him that he was being disrespectful. The victim said that he had something and reached into his vest and pulled out a Maglite. You said, "Oh, no. Oh, not that", and then reached into your pocked and pulled out a pen pistol. The victim described this as a metal tube, about 12 centimetres long.
5 You told the victim that you were going to shoot him in the foot because he deserved it. The victim was barefoot. You then attempted to activate the pen pistol twice, pointing it towards the victim's foot but nothing happened. You started swearing and the victim started pleading with you to stop. You then raised the pen pistol to the victim's head and pointed it at the left side of his temple. When the victim turned his head away you dropped your arm. You then pointed the pen pistol towards the victim's right foot again and discharged the pen pistol into the victim's foot. At this time you knew it was probable that the victim would suffer a serious injury from your actions. There was a loud crack and blood began spurting out of the victim's right foot, (Charge 1 - recklessly causing serious injury).
6 At this time you were prohibited from carrying a firearm as it was less than five years since you had finished serving a term of imprisonment for offences of handling stolen goods and being a prohibited person possessing a firearm (Charge 2 - prohibited person in possession of a firearm). You said, "That's what you get" and then walked out the door.
7 The victim was transported to hospital by ambulance. He initially told doctors that he had shot himself in the foot. He had surgery and two 1.2 centimetre long metal fragments and other numerous small fragments of metal were removed from his foot. The wound was stitched and he remained in hospital. On 20 April 2013 he disclosed to police that he had been shot by you.
8 A forensic expert examined the fragments taken from the victim's foot and was of the opinion that they were consistent with being parts of a .22 long rifle calibre lead nose cartridge which had been fired from a smooth bore firearm such as a pen pistol.
9 On 19 April 2013 you told another person that you had shot someone in the foot because they owed you $10. On 20 April 2013 another person heard you "going on about having to 'click, click' someone over $10". You were gesturing that the "click, click" was with a gun when you were saying this. On 21 April 2013 you were arrested at your home address. You sustained some injuries during the arrest and were conveyed to hospital.
10 Your offer to plead guilty was made after pre-trial argument on the second day of the second listing of the trial, with the victim having been cross-examined at committal.
11 In sentencing you I have taken into account the personal circumstances as described by your counsel, and in the neuropsychological assessment report of Mr Matthew Staios, dated 8 February 2016, which was tendered as Exhibit 3.
12 You are now 46 years old and were raised in Melbourne. You had a normal and stable childhood. You left school after year 9 and did a bricklayer's apprenticeship. You worked in that area for about 20 years. You were injured in a motor vehicle accident in 2004 and have not worked since then. You have suffered a number of other injuries and illnesses, including successful surgery for metastatic lung cancer in 2015.
13 Mr Staios, in his report, says that you have not attempted to minimise the seriousness of your actions and have expressed remorse. It is Mr Staios' opinion that your risk of recidivism is moderate due to risk factors of maladaptive personality traits, a long-standing history of substance abuse, ongoing interpersonal stresses, criminal history and current offending, employment status, psychological health and medical health. It is his opinion that you meet the criteria for a diagnosis of major depressive disorder and cannabis use disorder.
14 It is Mr Staios' opinion that you are in the average range of intellectual functioning and do not have a profile consistent with a diagnosis of a traumatic brain injury despite having been hit on the head with a hammer in 2012. Mr Staios says it is unlikely that under the influence of substances your ability to control your impulses would be significantly reduced. He says:
"If required to serve an extended sentence in prison, I am concerned that such a setting would serve to further exacerbate his existing vulnerabilities and further negatively impact upon his ability to reintegrate into society in the long-run".
15 Mr Staios is also concerned about the potential negative impact of anti-social peers whilst in custody. Mr Staios suggests there are protective factors being a supportive personal relationship and stable accommodation.
16 As previously indicated, you have a criminal record. You have admitted a significant criminal record which includes a number of firearms and assault offences. You have previously served important by way of an intensive correction order in relation to charges including charges of being a prohibited person possessing an unregistered firearm.
17 In 2008 you were sentenced to a term of imprisonment of two years with a non‑parole period of 12 months for offences including intentionally causing injury and recklessly causing injury. In 1999 you were ordered to serve six months' imprisonment by way of an intensive correction order for charges including recklessly causing serious injury.
18 There is a subsequent matter which is relevant to the application of the principle of totality. On 1 August 2013 you were sentenced to a suspended sentence of three months, suspended for 15 months, in addition to 69 days' imprisonment, 59 days of which was reckoned as served for other offending which included a charge of making a threat to kill.
19 In police submissions your counsel submitted that the appropriate sentence would be a suspended sentence of imprisonment. Your counsel subsequently submitted that a community correction order would also be an appropriate sentence. Your counsel placed particular reliance on your lack of offending since the sentence imposed on 1 August 2013, and your situation in respect to the five year old son of your partner. You live with your partner but she has a number of issues. As a result, her son is subject to child protection orders under which he is at present placed in your care. As part of that, situation you are required by the Department of Health & Human Services to comply with certain requirements and conditions of the order such as drug screens. Your counsel submitted that matter relevant to your rehabilitation would be dealt with appropriately under the supervision of the Department of Health & Human Services and that a community correction order would not be required.
20 Your counsel said that you have moved away from former associates. Your counsel also relied on the delay in this matter, your health problems, your lack of further offending and your plea of guilty which he said was indicative of remorse.
21 As indicated during the plea hearing, I wish to consider a number of sentencing options. You were assessed for a community correction order, and have been assessed as suitable. That is the assessing officer's conclusion, despite you engaging in behaviour during the assessment which concerned that person and which is very concerning to this court. The report says that you said if your son was taken away from you, you would "make Walsh Street look like a picnic". You also, according to the report writer, tended to minimise your role in the offending and suggested the victim was the aggressor and owed you money. You said when told that you may not be able to hold or obtain a firearms licence that that had not stopped you previously.
22 The assessing person was also concerned that you have suffered a number of injuries which may make it difficult for you to work and reported that you would need a full medical clearance before you could commence any type of community work. You also told the assessor that you frequently use cannabis. I note that you have subsequently apologised through your counsel for what you said to that officer in terms of the Walsh Street matters.
23 It is clear from the Department of Health & Human Services confidential report dated 17 February 2016 (Exhibit 1), the reference from your neighbour, Ms Buyanich (Exhibit 2), the oral evidence of Ms Buyanich and oral evidence from your father, that you and your partner's son have a very strong bond. It is also apparent that you are able to provide this young boy with a degree of stability and care that his mother and father are not able to provide. I note that the child was placed on an interim accommodation order in your care for a period. I have not been provided with copies of the current orders, but for the purpose of this sentence I proceed on the basis of your instructions to counsel that you are responsible for the care of the child on a day-to-day basis for the period between now and August. At that time the orders will be reviewed and the situation will again be reviewed in the Children's Court.
24 Paul Schweizer, you committed a serious and nasty offence. You behaved in a bullying and aggressive manner and then shot the victim in the right foot. You were prepared to threaten to discharge a bullet and then discharge a bullet into his foot knowing it was probable he would suffer a serious injury from those actions. He did suffer a serious injury. He was required to undergo surgery with fragments being removed from his foot. There is no evidence before me of any ongoing consequences for him from that injury.
25 You were prohibited from carrying firearms, yet you were prepared to do so. You did this over a very small debt and what you apparently regarded as an act of disrespect in relation to you. You have a history of violence and firearms offences, and you were prepared to use both in order to stand over the victim. Your moral culpability is high. Your behaviour must be strongly denounced and appropriately punished. General deterrence must play a significant role in sentencing you in order to discourage others from engaging in similar behaviour.
26 There has been a significant delay in this matter coming to court and in that period of time you have made significant progress in terms of rehabilitation. Unfortunately that rehabilitation has stopped short of ceasing all illegal drug use or developing insight or a changed attitude in respect of firearms. I consider that your prospects of rehabilitation are moderate. I accept that the prospects of rehabilitation would be improved by your continuing to be responsible for care of the child and being provided with support and treatment in the community.
27 You are entitled to a discount for your plea of guilty which was made late but still has considerable utilitarian value and has saved the trauma and expense of a trial. From the contents of the assessment report and the evidence of Ms Buyanich, it appears that you continue to a degree to minimise your moral culpability in this offending. I note that you did, in the process of the assessment, apologise if you had caused harm to the victim. In my view, your plea of guilty can only be regarded as an expression of limited remorse in this matter.
28 I consider that specific deterrence must be given weight in sentencing you in order to deter you from further offending of this nature. In view of your previous history, I consider the community protection must also be given some weight in sentencing you.
29 I have no doubt that the objective gravity of your offending and the need to give effect to denunciation, general deterrence, specific deterrence and community protection warrant a sentence of imprisonment. It appears that you have made some progress for rehabilitation and for that reason I would sentence you to a term of imprisonment of at least a year to be followed by a community correction order. I have decided to impose a shorter period of imprisonment being the time you have already served, to be followed by a lengthy community correction order, because I am satisfied that imprisoning you for a further period at this point of time would cause exceptional hardship to the child whom you have in your care.
30 The Department of Health & Human Services Report (Exhibit 1) provides details as to the child's difficulties, particularly with communication. He is five years old but is described as non-verbal, which, according to the report, may be a product of his disruptive or neglectful home environment in the past. He is also described as being very behind in all aspects of his development. It appears from that report that you are accepted as being able to provide him with a safe, secure and loving environment in which he has improved in a number of ways. It appears that you because you are able to do that that there was positive support for you within that report, despite your significant criminal history. The report also outlines the numerous medical appointments in order for treatment and assessments that the child will need to attend. It appears that at the present time you are the only person who is able to provide support to him in that regard.
31 I also heard evidence from your neighbour, Ms Buyanich, and your father. Both impressed me as being honest witnesses who were able to make accurate observations of your relationship with the child, and also were able to make accurate observations of your ability to care for the child and the importance of you to the child in his life at present. They were both very positive in respect of your love for the child and your ability to care for him. Your father said that he had noticed significant changes in you since you have had the care of the child. He says he now enjoys spending time with you and your son.
32 In the light of that evidence and the material before me, I consider that this child is particularly vulnerable and requires particular support at this time. In my view, he is in a different situation than other children whose parent or parents are incarcerated. It may be that temporary placement could be found with him, but there is no indication that there is anyone else in his life at present with whom he has such a strong bond. Because of his vulnerabilities, it appears to me that the strength of that bond and your ability to provide him with continuing support is very important to him at the present time, given his young age, and will be very important to his continued development in the future. It is clear that at present his mother and father are not able to provide him with the degree of love and care he clearly requires in these particular circumstances.
33 I have also taken into account in sentencing that you have spent 69 days in custody on other matters. I intend to impose an aggregate sentence as both offences arise from the same factual circumstances and are closely interconnected.
34 Before placing you on a community correction order, I am required to obtain your consent. The sentence I propose in respect of Charges 1 and 2 is an aggregate sentence of 102 days' imprisonment to be followed by a community correction order for four years. You have had the core conditions of the community correction order explained to you by the Community Correction Officer. You have also had your counsel take you through the draft community correction order that I propose.
35 The special conditions would be 400 hours of community work; that you undergo assessment and treatment in relation to drug use, mental health issues, programs to reduce reoffending; you would also be required to comply with a supervision requirement and a judicial monitoring requirement. Any hours that you spent engaging in treatment or rehabilitation would be deduced from the community work hours.
36 There is clearly an important core condition of this order, Mr Schweizer, which is that if you further offend you will be brought back before me and I will be in a position to be able to resentence you. You can be breached on the order if you reoffend or if you fail to comply with the conditions of the order. If you reoffend in any way that involves violence or guns and you come back before me to be resentenced you will go to gaol. You must understand that. I am told in the psychological report that you are a concrete thinker. You ought to be able to understand that simple proposition that if you offend in that way again and come back before me you will go to gaol.
37 If you mean what you say about continuing to care for the child, then you will have to prove yourself worthy of that position. You are not his parent. You may or may not always be his official de facto step-parent. You must stop using illegal drugs and you must learn how to control your own behaviour. You still struggle with that, as demonstrated by your interaction with the officer assessing you for the community correction order. If you do not learn to control your own behaviour, you will put yourself at risk of reoffending and will also lose your ability to care for the child.
38 I consider that in this situation placing you on a community correction order, together with a shorter period of imprisonment, will adequately meet the sentencing requirements that I have outlined.
39 Paul Schweizer, could you please stand. Do you consent to the community correction order in the terms that I have outlined
PRISONER: Yes, I do, Your Honour.
40 HER HONOUR: Thank you very much. In that case, in respect of Charges 1 and 2 I convict you and sentence you to an aggregate term of imprisonment of 102 days, to be followed by a community correction order of four years on the conditions that I have outlined. I declare that you have spent 102 days of this sentence by way of presentence detention. I have made the forfeiture order that was sought
41 But for your plea of guilty, I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years.
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