Director of Public Prosecutions v Sheehan

[2016] VCC 2041

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

AT GEELONG
CRIMINAL JURISDICTION

CR 16-01329

DIRECTOR OF PUBLIC PROSECUTIONS

v

KARL MICHAEL SHEEHAN

---

JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	21 December 2016
CASE MAY BE CITED AS:	DPP v Sheehan
MEDIUM NEUTRAL CITATION:	[2016] VCC 2041

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S. Flynn
For the Accused	Ms S. Pratt

Pages 1 - 12

 

 

HIS HONOUR:

1Karl Sheehan, you are to be sentenced for two charges of recklessly causing serious injury, one charge of making a threat to cause serious injury, three charges of theft, two charges of using a firearm as a prohibited person, three charges of possessing a firearm as such a person, one charge of arson and one charge of handling stolen goods. 

2Maximum sentences are 15 years' imprisonment for recklessly causing serious injury and handling stolen goods; ten years imprisonment for theft, for both using and possessing firearms as a prohibited person and for arson, five years imprisonment for threatening serious injury.  You will also be sentenced for summary offences of damaging property with a firearm and possessing cartridge ammunition without a licence. Maximum penalties are two years' imprisonment and a fine of 40 penalty units.

3You  pleaded guilty before me on 29 November.  When interviewed by police on 25 March 2016 you made admissions; but also stated poor recollection of a number of offending incidents.  I accept that you were using drugs heavily over the three weeks of offending.  On 29 July the committal went by hand-up brief after which you entered a plea of guilty and the matter was then listed for plea hearing in this court. 

4You receive the benefit of  your pleas of guilty and a high level of co-operation,  both from an early stage.  You have significantly facilitated the interests of justice and I accept that you are remorseful.

5At your plea hearing, also on 29 November, Ms Flynn for the Crown tendered a written summary of prosecution opening, a number of  photographs mainly depicting the scenes and aftermath of offending, the injuries caused and the firearm used.  Ms Flynn also tendered the victim impact statements of John and Linda McKenzie and Gary Brockett.  Mr Farrington, for you, tendered a large number of letters of character reference and associated documents,  the report of then treating psychologist Jeremy Candappa, dated  28 March 2014,  and the report of Forensic psychiatrist Dr Kevin Ong, dated 28 October 2016.  Mr Farrington also called your father, Barry Sheehan,  to give evidence on your behalf. 

6The circumstances of your offending are comprehensively set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be relatively short. 

7These offences occurred in various parts of the greater Geelong area between 6 and 25 March 2016.  They cover six separate incidents all or most involving your possession and use of a 410 gauge sawn off shotgun. 

8On 6 March at about 3.30 pm Gary Brockett drove along Yooringa Avenue, Norlane and stopped behind you as you reversed a 4-Wheel drive Jeep.  He tooted his horn, then continued his journey.  You followed him about 1.5 kilometres to the intersection of Forster and Station Streets and pulled into the left lane next to him.  You abused him and pointed a gun at him.  He accelerated through the intersection.  You shot at his car, striking and damaging the driver's side mirror.  These events make out Charge 1, use of a firearm by a prohibited person and the summary offence, damaging property with a firearm.

9The next day at about 4.30 am,  you went to the Norlane Hotel with Ebony Abrahams.  You were driving the 4-Wheel Drive Jeep.  You left after about 20 minutes and drove off.  You had the gun, handled it as you drove and it discharged.  Ebony Abrahams was shot in the lower abdomen.  You took her to the Geelong Hospital.  Once she was taken from the vehicle you drove  away.  Ebony Abrahams underwent surgery to remove pellets and wadding in the wound.  Ms Abrahams has declined to make a victim impact statement.  These events make out Charge 2, recklessly causing serious injury and Charge 3 using a firearm as a prohibited person. 

10At 9 pm on that night, you were driving a stolen Mercedes sedan in the Lara area.  This is Charge 4, theft.  You parked outside the home of Lee Pitcher.  It is a four acre semi-rural block in Alison Drive.  The driveway runs, on my assessment of the photographic evidence,  up to 40 or 50 metres.  Lee Pitcher saw the car and drove his own vehicle down to the road and pulled alongside you.  He got out and soon after an argument started.  You produced the gun and shot him in the chest.  This is Charge 5, recklessly causing serious injury.  You drove to the car park at Richmond Oval in Geelong and left the car.  You returned on 8 March and set it alight.  Tendered photographs show the vehicle's interior to be badly burned and destroyed.  This is Charge 6, arson.  Lee Pitcher was taken to the Alfred Hospital in Melbourne by air ambulance.  Paragraphs 24 and 25 of the Crown opening stated as follows, I quote, 

The victim was treated for soft one shot tissue injury to pectoralis (indistinct) without neuro-vascualar damage, two pellets (indistinct) within the right pectoralis major and ancillary soft tissue.  Three single pellets in the right upper (indistinct) complication." 

11About two weeks later on 20 March at about 12.30 pm you were at Buckleys Gaming Venue in Breakwater with an unknown female.  After befriending  and whilst talking to Glenda and John McKenzie, you stole her handbag which is Charge 7, theft.  Using the car keys held in the bag  you stole the McKenzie's motor vehicle, a Kia, from the car park.  This is Charge 8, theft. 

12That night, at about 7.30 pm,  you were driving the stolen Kia along a laneway off Perry Close.  Madin Deng's parked motor vehicle blocked your exit.  You threatened to shoot him if he did not move and you produced the gun.  This is Charge 9, threat to cause serious injury Mr. Deng complied.  As you drove away, you discharged two shots into the air.  This is Charge 10, prohibited person using a firearm.  On 25 March at about 6.30 am police attended outside a Norlane address in response to reports of a man lying in the gutter there.  It was James Nicholls, an associate of yours.  Search of his belongings revealed a 410 gauge shotgun and mobile phone messages relating it to you.  This is Charge 11, being a prohibited person possessing a firearm. 

13These things led to a police raid on premises at Bell Park where you were arrested.  The search revealed a second gun, a 12 gauge shotgun,  and assorted ammunition.  The second gun is the subject of Charge 12, being a prohibited person possessing a firearm.  Mr Farrington stated that a 410 gauge shotgun, the firearm you used in the course of the offending was a small piece, the smallest bore shotgun.  This is not challenged. There were also two stolen car registration plates.  This is Charge 13, handling.

14At the relevant times, you were a prohibited person under the Firearms Act because you had served imprisonment in the previous five years.

15As I have said, there are two tendered victim impact statements.  Gary Brockett describes in an understated way the emotional effects of his experience of Charge 1.  He is quieter, his sleep is affected.  It seems to me that he seeks to get on with his life in a resilient way.   Glenda and John McKenzie were the victims of your theft of their motor vehicle at Charge 7 and 8.  The impact includes financial costs, the loss of their car and of the mobility it gave them. They are aged pensioners.  They feel  anger and frustration at what happened.

16There are not victim impact statements by others, some of whom were seriously injured.  One deduces, with some certainty, that there have been other major effects.  Victims were shot, seriously injured and badly frightened.  There was, in two cases, urgent hospital treatment and surgery.

17Ms Flynn directed me to parts of the depositional material dealing with  the injuries caused and the impact upon Lee Pitcher.  The inevitable finding is that there is a very substantial victim impact across a range of people which should be taken into account in my sentence of you. 

18You are a 30 year old man,. awaiting this sentence in custody. 

19You came to Australia from Ireland with your family at three years.  You have an older and younger sister.  Your parents separated when you were five and for a number of years the children lived with your mother who re-partnered.  During early teenage years, you returned, as did your sisters, to live with your father.  Your father was successful in the commercial world and the family appear to have been very comfortable financially.  You went to St Bede's College and then Brighton Grammar School.  You achieved well academically both at school and university where you obtained degrees in banking finance and arts.  You were employed by the firms Dun & Bradstreet and then Perpetual Funds Management.  You were again successful.  In the context of developing drug dependence, you began to work with your father.  That appears to be in 2011.  You were good at sport,  after school playing high grade football in  Victoria's amateur competition.  Injuries ended that, which your father stated played a role in developing problems.

20The evidence before me,  which included that of your  father, indicates that behind all of this was an emotionally damaging childhood, early adult recreational drug use and then sharp decline over the past five years into drug addiction and a badly dysfunctional life.  As a young child you took hard your parent's separation.  Your mother's new relationship became an abusive one.  There was violence and intimidation over some years.  Your father sought custody of the children and after some time, all three decided to live with him.  Your father's evidence described this time in your life graphically.   You developed late physically and there were difficulties at school.  You seemed to overcome these.  Your father stated that in early adulthood all seemed well, albeit there was extreme sports training, work levels and social life. 

21You began using drugs at University. 

22In 2011 you told your father about the developing level of your drug use, your depression and fear that you were succumbing to  drugs.  As stated,  you left your employment and worked for him.   Since there have been several attempts supported by your family to rehabilitate.  These include several periods of inpatient rehabilitation and a  time in rehabilitation overseas.  Despite times of optimism there have always been relapses. 

23The psychiatric report of Dr Ong includes your history to him of childhood trauma. It is very similar to your father's evidence.  He diagnoses general anxiety disorder and a substance abuse disorder.  You told him that you began using amphetamines at 18 and then ice.  Dr Ong states at length toward the end of his report:

"Mr Sheehan has a long history of poly-substance abuse in particular amphetamines and benzodiazepine with evidence that this merged into  dependence disorder, (for example tolerance and craving).  While the most parsimonious explanation for his substance abuse was to self-medicate his anxiety disorder, the use of amphetamines and benzodiazepines appears to have become self-perpetuating and has contributed to exacerbation of paranoia, hyper-vigilance, impulsivity and aggression.  He has also very likely exacerbated Mr Sheehan's tendency  toward anxiety.  There is a clear link between his offending and substance abuse, in that most of his criminal activity has been committed in the process of obtaining monies to buy drugs or other sorts of substances.  As mentioned above, chronic amphetamine use particularly is likely to have caused paranoia, impulsivity and aggression with benzodiazepines contributing to limited recall of events.   Whilst his childhood experiences may have contributed to priming Mr Sheehan for development of his anxiety disorder and substance abuse it is the substance use that is the clear proximal factor in the offending.  He would need to address his substance abuse problems to have any hope of reducing his risk of re-offending.  In addition he is unlikely to be able to address the underlying anxiety disorder without managing his substance abuse issues first."

Dr Ong also states:

“Given Mr Sheehan's history of mental illness mainly his chronic anxiety disorder, he is likely to find a term of incarceration more onerous compared to a prisoner without his difficulties.  He will benefit from monitoring by prison health services in order to more thoroughly assess his need for treatment for his underlying anxiety disorder."

24You are presently placed in a maximum security part of the prison system,  with long hours of lockdown.  This is your preference. 

25Your criminal record filed with the indictment states four prior court appearances between April 2014 and October 2014 and October 2015.  Offences of dishonesty dominate.  There is a conviction for being a prohibited person in possession of a firearm in October of 2015.  To my reckoning, there have been two sentences of imprisonment.  This offending before me occurred whilst you were subject to a community corrections order imposed on 8 October 2015.

26As my earlier description plainly states, this was very serious,  and dangerous, and disturbing offending.  It was wanton and uncontrolled.  It was highly intensive at the two ends of a relatively short three week period.  It involved a firearm in public and also, in Lee Pitcher's case, in an essentially domestic setting.  The victims were vulnerable.  Two were seriously injured.  There was broad and serious impact.  That you were using drugs heavily and affected by that is no mitigation.  You have a significant criminal history.

27Such circumstances make important the sentencing purposes and considerations of deterrence (both specific and general deterrence),  your moral culpability, strong condemnation of the offending and the need for proportionate punishment.  Community protection has also been raised.  You and others must be deterred from posing the threat and causing the harm you did, in the way you did.  There must be a substantial period of imprisonment.

28I also take into account mitigating and/or moderating factors.  They particularly include the following. 

29(1)  Your plea of guilty and co-operation.  There are aspects of some minimization in  your description to Dr Ong of Charge 5, causing serious injury to Lee Pitcher.  However, I see you as, in a fundamental way, remorseful.  It would be hard  not to be so in the sober light of retrospection.  You particularly feel the harm you have done your family.

30(2)   Your personal history and circumstances.  This includes your psychological symptoms and,  related to them, the emotional damage of your childhood.  I accept Dr Ong's finding that you will find prison more onerous because of your psychological conditions. 

31(3)   Although guarded bearing in mind what I see to be a serious and entrenched drug addiction, I accept that you have prospects of rehabilitation.  Your father's evidence tracked through your attempts to rehabilitate after two sentences of imprisonment,  in 2014 and 2015.  After release in what seems early 2016, you again returned to the support of your family.  You relapsed.  Your father and sisters remain supportive.  All attended court.  You have employment capacity and,  indeed,  talent. A career in the commercial profession is lost to you.  However, I am satisfied by the evidence that,  if you are able to abstain from drug use, which is critical, you can live a productive life.  You hope for a future in industrial transport logistics.  I do not seek to crush your hopes for such rehabilitation.

32I also bear in mind the need for moderation itself.  For example, you are being sentenced for recklessly causing serious injury on Charges 2 and 5.  You are not charged to be sentenced, I particularly relate this to Charge 5), for intentionally causing serious injury. 

33These matters go to  reduce the length of the sentence compared to what the objectively viewed circumstances are. However, they must be balanced against the high criminality of your offending and those sentencing considerations, such as deterrence,  which flow.  As I have said, there must be a sentence of substantial length. 

34I find this is a case in which those factors favourable to you may to some extent be reflected in the minimum term I set.  Stand up please.  I sentence you as follows:

35On Charge 1, using a firearm as a prohibited person, you are sentenced to 3 years' imprisonment.

36On Charge 2, recklessly causing serious injury, you are sentenced to 3 and a half years' imprisonment.

37On Charge 3, possessing a firearm as a prohibited person, you are sentenced to 5 months.

38On Charge 4, theft, you are sentenced to four months' imprisonment.

39On Charge 5, recklessly causing serious injury to Lee Pitcher, you are sentenced to 5 years' imprisonment.

40On Charge 6, arson, you are sentenced to 18 months' imprisonment.

41On Charge 7, theft, you are sentenced to 4 months' imprisonment.

42On Charge 8, theft, you are sentenced to 6 months' imprisonment.

43On Charge 9, threat to cause serious injury, you are sentenced to 18 months' imprisonment.

44On Charge 10, using a firearm as a prohibited person you are sentenced to 18 months' imprisonment.

45On Charge 11, possessing a firearm as a prohibited person you are sentenced to 12 months. 

46On Charge 12, possessing a firearm as a prohibited person, you are sentenced to 9 months' imprisonment.

47On Charge 13, handling, you are sentenced to 6 months' imprisonment. 

48As to the summary offences, on using a firearm to damage property, I sentence you to four months' imprisonment;  for possessing ammunition without a licence you are fined $300. 

49I direct cumulation as follows.  12 months of the sentences on Charges 1 and 2, 6 months of the sentences on Charges 6 and 9, three months of the sentence on Charge 12, 2 months of the sentences on Charges 8 and 13 and one month of the sentence on Charge 4 are to be served cumulatively upon the sentence of for Charge 5 and upon each other.  That is a total effective sentence of 8 years and 8 months.  I set a minimum term before eligibility for parole of 6 years. 

50I declare under s.18, 271 days of pre-sentence detention.

51Had you not pleaded guilty I would have imposed a sentence of 11 and-a-half years with a minimum term of 9 years.  Are there other matters I need to ‑ ‑ ‑

52MS FLYNN:  Yes, Your Honour.  There are applications for forfeiture order and disposal order in relation to firearms and other matters such as registration plates, et cetera.

53HIS HONOUR:  I will sign those orders.  There's no forensic sample?

54MS FLYNN:  No, Your Honour.  Sorry Your Honour, no, there was already one on the system, Your Honour. 

55HIS HONOUR:  I will sign the orders now. Whilst I am doing that, there are people who have come to support Mr Sheehan.  I will permit them, for a short time, to speak to him before he is taken into custody.  All right, just for a short time please.  I would be obliged if you would supervise that.

56MS PRATT:  Certainly, Your Honour. 

57HIS HONOUR:  There are those orders.  Mr Sheehan must be taken into custody now, thank you. 

58(OFFENDER REMOVED)

59MS FLYNN:  Your Honour, I'm sorry, I - Your Honour went through the arithmetic quite quickly.  I don't know if my learned friend has had the opportunity to check it.  It was 12 months on ‑ ‑ ‑

60HIS HONOUR:  I will say it again. 

61MS FLYNN:  Thank you, Your Honour.

62HIS HONOUR:  He's left the court but we can check the arithmetic.

63MS PRATT:  I'm going to see him afterwards in any case, Your Honour. I will go through it with him. 

64HIS HONOUR:  Right.  Do you want me to go through the whole sentence again?

65MS FLYNN:  No, Your Honour.  So the base sentence was Charge 5, the five years.  If Your Honour would just go through the cumulation please. 

66HIS HONOUR:  12 months of 1 and 2.

67MS FLYNN:  So on each charge? Yes.

68HIS HONOUR:  One and two.

69MS FLYNN:  Yes.

70HIS HONOUR:  Six months on 6 and 9, three months on Charge 12, 2 months on 8 and 13, one month on Charge 4, cumulation on Charge 5 and each other.  Now, that's 12 plus 12 plus 6 plus 6 plus 3 plus 2 plus 2 plus 1, I get 44 months out of it.

71MS FLYNN:  That seem right to you?  Thank you, Your Honour.

72HIS HONOUR:  Is that right. 

73MS FLYNN:  Yes, thank you, Your Honour.

74HIS HONOUR:  Thank you.

‑ ‑ ‑