Director of Public Prosecutions v Sciascia

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WARRNAMBOOL
CRIMINAL DIVISION

No. S CR 2013 0082

DIRECTOR OF PUBLIC PROSECUTIONS

LENNARD HAVEN SCIASCIA

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JUDGE:	BELL J
WHERE HELD:	Warrnambool
DATE OF HEARING:	10 June 2014
DATE OF SENTENCE:	25 June 2014
CASE MAY BE CITED AS:	DPP v Sciascia
MEDIUM NEUTRAL CITATION:	[2014] VSC 305

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CRIMINAL LAW – sentencing – defensive homicide – shooting with a gun carried by accused – unpremeditated – action totally disproportionate to perceived threat – accused addicted to and intoxicated with ice – no relevant convictions for interpersonal violence – plea of guilty – good prospects of rehabilitation – continued support of family – accused working productively in prison – Crimes Act 1958 (Vic).
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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D Piekusis	Office of Public Prosecutions
For the accused	Mr M Dempsey	Robert Stary Lawyers

HIS HONOUR:

Lennard Haven Sciascia, you have pleaded guilty to a charge brought by indictment that on 15 October 2012 you committed the crime of defensive homicide in that you did carry out conduct, which killed Troy Kristopher Hocking in the belief that it was necessary to do so in order to defend yourself from the infliction of death or really serious injury in circumstances where you did not have reasonable grounds for this belief.
The maximum penalty specified in the Crimes Act 1958 (Vic) for this crime is imprisonment for a period of 20 years. Defensive homicide is a very serious offence, because it requires the formation of an intention to kill or to inflict really serious injury. But for the subjective belief of the offender in the necessity to act in self-defence, the crime would be murder.
Troy was born on 3 June 1992 and was only 20 years of age at the time of his death. He was the son of Geoff Hocking and Trudi Dennette Steff and the sister of Kymberley Huggins, as well as the partner of Kelsey Albert. He was the full-time carer of his father, with whom he and Kelsey lived.
At the time of his death Troy was confronting various personal issues, including the use of drugs. But he was widely loved and respected in the community and his loss has been deeply felt, as the victim impact statements to be referred to later in this sentence will show.
The circumstances in which the offence took place were that you, Wayde Landmark, Dylan Robertson and Troy had a relationship characterised by periods of hostility and periods of friendship.
In the early hours of Sunday 14 October 2012 you and Dylan Robertson conducted a ‘run through’ of Troy's home. Troy's father was asleep at the time. Troy himself was not home. You took various items, including a television, PlayStation, an Xbox and jewellery. This property was taken in lieu of a debt owed by him to you, and some of the property was taken by agreement.
Later that day at approximately 4.00pm, and in retaliation of your run through of his premises, Troy attended the premises of Wayde Landmark with Christian Knight and Ronald Cluney. Troy had a baseball bat in one hand and a hammer in the other. Christian Knight had a cricket bat and Ronald Cluney had a fence paling. Troy or Christian wanted the keys to the vehicle of Dylan Roberston, where your property was located. This property was located. The vehicle was parked outside Wayde Landmark's premises. He, his partner Kirsty Dach and their daughter, Imogen, you and Dylan Robertson were inside. Wayde and Kirsty were angry at Troy and his associates for bringing trouble to their home.
Armed with various items, Wayde and Dylan exited the premises. Ronald Cluney struck Dylan's leg with the fence paling. You, Wayde and Dylan got into Dylan's vehicle and drove off. You were followed by Troy, Christian and Ronald in a white sedan that Ronald was driving. As you were travelling down the street Ronald rammed your vehicle from behind and attempted to cut your vehicle off as it drove away.
At about 10.00pm Troy and Ronald Cluney attended at the home of Dylan Robertson's parents. Troy asked to speak to Dylan and threatened to kill him.
On Monday 15 October 2012 you, Dylan, Wayde Landmark and Michael Perry-Karaitiana, went to Wayde's premises. You and Troy exchanged a large number of text messages and phone conversations during the course of that afternoon. It was agreed that you and Troy would meet at Pivot Beach to sort out your differences. The text messages are aggressive on both sides. One from Troy refers to he and you having guns but the last text in the series says ‘I ain't got a gun but I'll be there’.
You, Dylan, Wayde and Michael then left Wayde's premises in Dylan's green Rodeo utility. Dylan was driving. You were in the front seat as a passenger. Wayde and Michael were in the rear. Dylan drove to an address in Willunga Street so that Michael could obtain back up for the prearranged fight at Pivot Beach, as well as flares if the event got out of hand.
Dylan parked the Rodeo in the driveway of 48 Willunga Street. Michael got out and started talking to the occupants of the premises. Meanwhile, Troy and Christian Knight were travelling in the vehicle of Roy King. After seeing you and the others in the Rodeo, they followed you to 48 Willunga Street and parked in the driveway of 46 Willunga Street, alongside the Rodeo. Troy was in the front passenger seat.
You and Wayde Landmark then got out of the Rodeo and approached Troy as he was sitting next to Roy King in the other vehicle. Wayde began abusing Troy for bringing trouble to his home when his children were there and punched him through the window of the vehicle into his face. Troy asked for the return of his belongings. There was abuse on both sides.
Then you confronted Troy with two bullets in your mouth like boar's teeth and began yelling at him, ‘you're fucked, you're fucked’. You then produced a .22 calibre single shot pistol. You threw a bullet at Roy King and pushed the pistol towards Troy's head. He said, ‘you ain’t got the guts to pull the trigger’. You then moved back and, from an upwards position, shot Troy down through his left hand and into his lower chest area.
Roy King immediately reversed his vehicle and took Troy to hospital. He later died.
After the shooting you left the scene with Dylan Robertson and Wayde Landmark. You participated in stashing the gun in the long grass opposite Wayde's premises in Barkly Street, where it was later located by police. After picking up Michael Perry-Karaitiana, you asked to be taken to a bottle shop so that you could be captured on CCTV to provide an alibi, which you did. Back at Wayde’s premises, you discussed what would happen if Troy died and said ‘fuck him, he should have paid his bill’. At those premises, you showered and washed your clothes to remove any gunshot residue. You were later arrested outside these premises.
When interviewed by the police on Tuesday 16 October 2012, you told the police that Troy owed you and others many thousands of dollars, that the night before the shooting Troy had threatened to kill Wayde Landmark and others, that you and Troy were in dispute over various drug-related matters, and other matters. You lied to the police that Troy had produced the gun when you were standing beside the vehicle in which he was seated as a passenger. You also lied in telling the police that he was shot when you were disarming him.
Later, however, you admitted your role in killing Troy Hocking. You maintained the position that you did so because you honestly believed you were at risk of being seriously injured or killed yourself. By the acceptance of your plea of guilty to the charge of defensive homicide, the prosecution have accepted you held this belief and you will be sentenced upon this basis.
However, there were no reasonable grounds for this belief and, in my view, the crime which you committed was a serious example of this kind of offence. It was particularly heinous because you voluntarily got out of your vehicle in the company of another male and approached Troy as he was seated in the passenger seat of the other vehicle. From your position standing over him from outside the vehicle, with him sitting in the passenger seat inside the vehicle, you effectively had him at your mercy. He never for a second believed that you would shoot him and the action that you took was grossly disproportionate to the fears that you had for your own safety, accepting as I do that those fears were sincerely held. Although you brought the gun to the scene of the crime, I cannot find that the killing of Troy was planned or premeditated. I think it occurred in circumstances of a spontaneous loss of control when you were under the influence of ice intoxication. In the circumstances of the case, I mention that the crime was committed under the influence of drugs by way of explanation, not mitigation.
Victim impact statements were provided to the court by Trudi Dennette Steff, as I have said, Troy's mother, Geoff Hocking, Troy's father, Kelsey Albert, Troy's partner, Christian Cluney, Troy's friend, and Kymberley Huggins, Troy's sister. Ms Steff, Mr Hocking and Mr Cluney personally read their statements to the court. The statements of Ms Huggins (who was present in court at the plea hearing) and Ms Albert (who was also present) were read to the court on their behalf and in their presence.
Troy's mother, Ms Steff, said her son was never a little boy and always a little man. He was the mediator, the protector and the entertainer of the family. He was loved by so many people that many persons attending the funeral had to stand outside. She was grief stricken over his death and being unable to see him get married and have children. She became reclusive and could not be outside the home for very long without experiencing panic attacks. There seemed to be no release from the punishment inflicted by Troy's death.
Troy's father, Mr Hocking, described his first and only son as ‘the tiniest, most gorgeous, blue-eyed, blonde-haired little boy God had put breath into’. He described Troy's early health difficulties. Following his separation from Troy’s mother, Troy lived with Mr Hocking and they became extremely close, much more than the average father and son. In later years, Troy was also Mr Hocking's carer. Troy was adored by the family. He would say ‘I love you Dad’ even as a 20 year old in front of the family. Now that will never be said again, nor will there be any jokes, or fishing, or camping trips. Mr Hocking will not see his son marry and have a family, which probably would have happened soon. Mr Hocking also found it difficult to leave the house. He was being treated for ongoing depression and traumatic stress. His statement was signed simply, ‘Troy’s Dad’.
Troy's sister, Ms Huggins, told the court of her pain at not being able to see, hug, talk to, or hear the voice of her brother. He was a loving, kind and loyal man. Ms Huggins was especially distressed that her daughter had been deprived of a kind and loving uncle. He would have taken her to school concerts, high school graduation ceremonies, her Deb and her wedding day. It was extremely difficult to bear Troy's loss because, as she put it, ‘every good memory I have is of my brother’.
Troy's partner, Ms Albert, said Troy was not just her partner but also her best friend and soul mate. When she first met him she told herself that she wanted to spend her life with him and felt lucky that he felt the same way. They fell in love instantly. Time had not healed the pain of his death. She lived with the thought of rushing to a Melbourne hospital with his family and driving back to Portland leaving him behind deceased. She had been receiving medical and psychological assistance for months and was still suffering from depression. She slept poorly and found it hard to meet and trust new people.
Troy's friend, Mr Cluney, spoke of the pain of never being able to see his best friend again. He felt he let Troy and his family down. He wanted to do the right thing but was not sure how. He began to hate himself for being there and not being able to save Troy. Mr Cluney also described the adverse impact of Troy's death on his work, his health and his capacity to sleep.
The crime which you committed has brought about the most terrible consequences known to the law, being the loss of life of another human being, Troy Hocking, then aged only 20 years. It has also brought about the terrible consequences for the victims, which you have just heard.
Yet, as your counsel submitted, you do not have a criminal history for crimes of interpersonal violence. Your criminal history is not very long and not extensive and consists mainly of minor property, drug related and driving offences. You were sentenced to a suspended prison term of three months in 2011 for reckless conduct endangering others with serious injury, but this involved reckless conduct in relation to a motor vehicle in which you were a passenger. In 2013, you were sentenced to a term of imprisonment of one month for assault in company. Besides the fact that the relevant events took place before you killed Troy, I do not know the circumstances. It can be seen that nothing in this history suggests any predilection on your part for committing the crime of defensive homicide and I must regard it as out of character for you.
You are 28 years of age and are therefore a relatively young man with most of your life ahead of you. Your family background is that you were born in Hastings, New Zealand in 1986. You are one of seven children, six of whom have survived. Your childhood was traumatic. Your father left home when you were aged five years. Your mother re-partnered with a man who was a heavy drinker and violent towards her. For several years as a child you witnessed this, even at times arranging for her to go to hospital. This relationship ended and your mother subsequently met her present partner. When she decided to move to Australia, your father asked you to stay in New Zealand. You refused, saying you wanted to go with your mother to look after your sister. Your father told you never to come back. You were then eight years old.
Your family mostly live in Esperance in Western Australia. They wanted to be at the plea hearing, but could not do so when it was brought forward. In your family’s stead, your partner, Elisha Brown, her mother and your brother-in-law were present at the plea hearing. I infer from this that you have a large family who loves you, who can see good in you despite what you have done and who will support you in the long term. I note that you have regular telephone contact with your mother and other family members. Your mother and younger brother visit you in prison every few months.
Your education and work history is that you left school aged 15 years and have worked as a shearer ever since. In the off-season, you worked as a trawler fisherman. You have mainly lived in the Portland area of country Victoria. Sadly, your oldest brother committed suicide six years ago, leaving you deeply affected as he was something of a father figure. You have been in an on-again/off-again relationship with Elisha for about 13 years. She has provided a statement giving you support. She is aged 29 years and you have two children, a son, Kobey, aged 9 years and a daughter, Kalee, aged 5 years. Except when you take ice, Elisha says you are a great father to the children, taking them on outings, attending school sports and reading to them in bed. You have supported Elisha in the upbringing of the children. You speak to them most nights and Elisha brings the children to visit you on holidays. The children miss you a lot.
Elisha says that your ice addiction really began after a work accident in 2012. As your counsel submitted, your decline thereafter has been profound. Having worked consistently and industriously for a decade from a young age up to 2012, you now have an ongoing neck injury, are separated from your partner and children due to drug addiction and face a significant term of imprisonment for a homicide offence.
The work injury occurred at sea when you were hit on the head with an enormous basket of fish product. You were hospitalised for days. Your employer asked you not to tell WorkCover about the injury. You refused and had to engage in a protracted battle to recover medical expenses and modest compensation. You were then told there was no work for you with that employer and so your demise began.
This and much else, is recounted in the report of your consultant forensic psychiatrist, Associate Professor Andrew Carroll. Dr Carroll found no evidence of mental abnormality, post-traumatic stress disorder or psychosis. You had maintained a cannabis dependency from the age of 15 years. Six months prior to killing Troy Hocking you commenced smoking ice, staying up for three to four days at a stretch and then being down and out for several days after that. According to Dr Carroll, you are well aware of the damage that this has caused you and others and have no intentions of using ice ever again.
You told Dr Carroll that your lifestyle at the time revolved around this ice use. It brought you into contact with criminal gangs and led to isolation from your partner Elisha, your children and former friends. In the week prior to the offence, you were smoking ice heavily. You felt there was someone after you all the time. You had apparently real conversations with your deceased brother. You could not think properly and acted upon impulse. You gave an account of the shooting which I do not accept. I do accept, however, that after the shooting you climbed a rig near the sea intending to jump off to kill yourself but were persuaded by friends to come down.
According to Dr Carroll, you had escalating anxiety about your own personal safety. Your fears were based on reality and understandable to some extent, but likely exacerbated by the effects of chronic ice intoxication. I accept this opinion but it is clear that whatever fears you had for your own safety, killing Troy, and doing it in the way that you did, was a totally disproportionate response to those fears.
Dr Carroll reports favourably upon the prospects for your rehabilitation. You appear psychologically minded and able to benefit from the programs offered by correctional services. You do not have pervasive anti-social attitudes. Pre-injury, you had a strong work record. You are keen to resume your role as a father and provider to your children. You have a low risk of ice addiction relapse. Dr Carroll regards your prospects of rehabilitation as good. In that connection, I note that you have used the time in prison to reassess your life, working several hours per day as a billet and undertaking various courses on substance abuse and violence prevention.
Taking into account these matters and the strong degree of family support which you have, I too regard your prospects of rehabilitation as good. As I have said, this crime is out of character for you and I think your guilty plea at a relatively early stage and cooperation in the sentencing process, indicates that you are genuinely remorseful for what you have done. I take the plea of guilty into account not only as a sign of general remorse but as saving the community the cost and inconvenience of a trial and sparing family and other witnesses the ordeal of having to give evidence.
Further, in my view specific deterrence is not as great a sentencing consideration in this case as it might otherwise have been. Although there is always a risk that you might, on release, relapse into ice addiction and a criminal lifestyle, I think that is unlikely. You are not a significant continuing risk to society in my view. You should not be sentenced upon the basis that there is any need for the community to be protected from you in the future although the sentence must be such that you too can appreciate the consequences of reoffending. I would agree, as submitted by your counsel, that your good prospects of rehabilitation and your plea of guilty justifies a significant period of parole.

General deterrence is, however, a significant sentencing consideration. Those who would commit such a shocking crime as you have committed must be made to know that the penal consequences will be extremely serious, even where drug addiction is an explanatory factor. Furthermore, by the sentence I will soon pronounce, the court, on behalf of society, must denounce and condemn the criminal behaviour by which you ended the life of Troy Hocking at such a young age, particularly with the use of a firearm, which is an aggravating feature in the circumstances of this case. The serious objective gravity of the offence that you committed must be reflected in the sentence that is just in the circumstances, even taking into account you plea of guilty and other matters put in mitigation.
In accordance with the court's obligation to take into account current sentencing practices, I have considered the sentencing range applicable in this kind of case, as revealed in the table of cases handed up at the plea hearing, and the other cases referred to. I have given particular attention to the facts and circumstances of those cases by comparison with the facts and circumstances of the present case. In this case, the fact that your actions were a wholly unreasonable response to the circumstances giving rise to the fears that you had for your own personal safety must be a significant sentencing consideration.
It was submitted on your behalf that there is a reasonable and substantial probability that you will be deported back to New Zealand by reason of your conviction and sentence. I will assume the admission of the expert evidence that you rely upon in this regard. I accept that, if the federal minister were to decide to exercise the power of deportation in your case, it would be hard to challenge. But having examined the applicable legislation, ministerial directions and authorities, I am unable to conclude on way or another what will happen. The uncertainty will make serving a prison sentence a little harder to bear, for you partner Elisha has made it clear that it will really be impossible for her and the children to go to New Zealand with you. But I cannot take into account that you will be deported because I am not at all sure that the federal minister will so order.
So that I can pronounce sentence I ask you to stand please Mr Sciascia.
Lennard Sciascia, in all of the circumstances, for the crime of defensive homicide when you killed Troy Hocking, you are sentenced to a term of imprisonment of nine years. I specify six years as the period that you must serve before being eligible for parole. But for your plea of guilty, I would have sentenced you to imprisonment for 12 years with a non-parole period of eight years. I declare that you have served 588 days of detention already, not including today, in relation to this offence. I have made the forfeiture, disposal and forensic sample retention orders sought by the prosecution.

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[2014] VSC 305

25 June 2014