Director of Public Prosecutions v Sidebottom
[2022] VCC 2389
•9 November 2022
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01293
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL SIDEBOTTOM |
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JUDGE: | Her Honour Judge Todd | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 4 November 2022 | |
DATE OF SENTENCE: | 9 November 2022 | |
CASE MAY BE CITED AS: | DPP v Sidebottom | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2389 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Threat to inflict serious injury; discharging a firearm at premises with reckless disregard for safety; unlawful assault; failing to properly store a firearm; failing to properly store ammunition
Legislation Cited: Crimes Act1958 (Vic) s 21; Firearms Act1996 (Vic) 121(1), 121(1A), s131A(2)
Cases Cited:Neale v R (1982) 149 CLR 305
Sentence: Total effective sentence of 10 months’ imprisonment; community corrections order of 30 months with an unpaid work component of 250 hours; fine of $600
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Tudehope | Office of Public Prosecutions |
| For the Accused | Mr J. McGarvie | Stary Norton Halphen Criminal Lawyers |
HER HONOUR:
1On 14 November 2021 a man pulled up in a car outside a house in Broadford. The front door of the house was made of glass and faced the street. Through the window of his car the man fired a shot from .22 calibre firearm, reloaded, and fired again. This arose out of events earlier that day, involving the man’s ex-wife and her former partner.
2Michael John Sidebottom, you have pleaded guilty to one charge of making a threat to inflict serious injury, a charge that carries a maximum term of imprisonment of five years,[1] and one charge of discharging a firearm at premises with reckless disregard for safety, a charge which carries a maximum penalty of 15 years’ imprisonment.[2]
[1]Crimes Act1958 (Vic) s 21.
[2]Firearms Act1996 (Vic) s 131A(1).
3You have also agreed to have heard in this case and pleaded guilty to the related summary offences of unlawful assault, which carries a maximum penalty of 15 penalty units or three months’ imprisonment, and to the charges of failing to properly store a firearm and failing to properly store ammunition, each charge carrying a maximum penalty of 60 penalty units or 12 months’ imprisonment.[3]
[3]Ibid ss 121(1), (1A).
4In about July 2020, and after 16 years, during which two children were born, the relationship between you and your wife Ms Clydesdale failed.
5The following March, Ms Clydesdale commenced a relationship with Mr Speechley. You met Mr Speechley in about May 2021.
6After your separation from Ms Clydesdale, care of your sons was shared; they lived generally with their mother but were with you every second weekend.
7The weekend of 13 November 2021 was a weekend where you had custody of the children, and on Sunday 14 November you spent some time with them at a friend’s house in Broadford. Normally, Ms Clydesdale would have collected the two children that evening but this was renegotiated between you over the phone and there was an agreement that the children would stay with you for an extra night.
8You had drunk about four beers. Ms Clydesdale said to you that she would call the police if you put the children in your car.
9You said to her: ‘You’re a miserable cunt. Just because your life is fucked don’t fuck mine.’
10Ms Clydesdale contacted Mr Speechley and they went, in separate cars, in search of you and the children; they knew you were generally in the Broadford area.
11Ms Clydesdale went into the house and came out with the two children, who then left with her in the car.
12Mr Speechley remained.
13You approached his car. Mr Speechley would later say that you said to him, ‘What the fuck are you gonna do?’ With these words, Mr Speechley got out of the car and you swung at him with open hands, causing a scratch to his face; this gives rise to the related summary charge of unlawful assault.
14This exchange devolved into a fight between you. Mr Speechley hit you to the head. You wrestled. He asked you, ‘Are you done?’, and you said, ‘Yep’. You were bleeding. Mr Speechley left in his car.
15I note your account, included in the prosecution opening, that Mr Speechley started this fight. You have accepted your part of the responsibility for what happened by your plea to the charge of common assault. I make no finding one way or the other as to who it was who started the fight. It makes no difference to my assessment of your culpability for what happened next.
16Ms Clydesdale rang you after she got home. Over the phone you said to her you were ‘goin’ to fucken shoot him’. This gives rise to Charge 1 on the indictment, making a threat to inflict serious injury.
17Ms Clydesdale phoned Mr Speechley and told him that you were nearly at his house and that she thought you had a gun.
18Mr Speechley then saw your car out the front of his house. He called triple 000.
19While he did so, you fired two shots from a .22 calibre firearm from the front seat of your car. They sailed through the glass front door and found their way inside. This gives rise to the charge of discharging a firearm with reckless disregard for safety.
20You drove home. You called a friend, Nicholas Ridd; you showed him where your gun was in the laundry. This gives rise to a Summary Charge 3, failure to properly store a firearm. Mr Ridd arranged for the gun to be stored in a friend’s gun safe.
21Police arrested you at home soon after 10:00 pm; they searched your house and seized four firearms registered by you. They also found ammunition in a soft rifle case in your car, and this gives rise to Summary Charge 4, failure to properly store cartridge ammunition under a license.
22You answered questions in a police interview in the early hours of the following morning. You made admissions to everything, including being ‘pissed off’ with Mr Speechley and intending to fire a shot through his front door to say, ‘Fuck off’.
23You were taken into custody on 14 November 2021 and bailed at a filing hearing later the following day, and you entered a plea of guilty at the committal mention on 19 July 2022.
Prior Criminal History
24I note here that you, at age 36, have no prior criminal history. I will return later in these reasons to the other evidence of good character on your plea.
Nature and Gravity; Moral Culpability for the Offending
25In a heightened emotional state, you fired two shots into the front door of someone’s home. Charge 2 on the indictment contemplates a reckless disregard for the safety of another and, specifically in this case, Mr Speechley. Your barrister sensibly conceded that this offence in particular is grave.
26From the content of the call you had with Ms Clydesdale before going to Mr Speechley’s house, it is clear that at this point at least you had put yourself into a state of mind that was both antagonistic to Mr Speechley and where you were contemplating using a firearm to express your discontent with him. You had only recently had a physical altercation with him but you were not satisfied to end it there.
27This was family violence. It was sensibly conceded that the acts, not only of the threat in Charge 1 but also of the conduct in Charge 2 in firing the shots, were directed not only at Mr Speechley, but through him to Ms Clydesdale. The higher courts have repeatedly said that acts of violence carried out by disappointed spouses or former spouses are to be treated very seriously.
28You drove to Mr Speechley’s house. You had with you a firearm, which I was told on the plea had been in the car from an outing earlier that weekend. It ought to have been safely stored. If it had been stored properly, you might not have been able to reach for it in the heightened emotional state you had by then inhabited. During the drive to Mr Speechley’s house, you might have calmed yourself down, but did not do so.
29I accept also that when you carried out this act you were an essentially decent person who had, in the months before, lived through a period of dismay and disappointment at the dissolution of your marriage. You had fallen into a depression, describing yourself as crying yourself to sleep. Your own image of your life’s structure had dissolved. Your children’s lives were receding from yours, which caused you great fear. These matters were distilled and refocused in the exchange with Mr Speechley. And to that degree, your ‘emotional stress’, as it was described in the case of Neale v The Queen does inform and reduce your moral culpability.[4] This context distinguishes your offending from the forms of this offence which arise in the context of gang activity or drug-related threats and counter threats.
[4]Neale v R (1982) 149 CLR 305, 324.
30That said, you, like all of us, are responsible for your emotional states and the thinking that generates them, and there is no licence for a former spouse to express themselves violently to relieve that stressful state. The courts see too much of it and the community expects this conduct to be soundly punished.
31I accept that your offending was not premeditated in the sense that it was not the product of cool and rational planning. I’ve already noted that the time that elapsed between your phone call when you made the threat and your discharge of the firearm into Mr Speechley’s front door was relatively brief.
32It’s clear that your firearm was not properly stored and that you had a generally casual relationship to your obligations in owning firearms. You will not be doubly punished for the firearms offences. But I wonder, if you had stored the firearm responsibly that day, the extra time it would have taken you and the additional thought processes accompanying the act of unlocking a safe might have been what you needed to cool off before acting in the way that you did.
33I regard the unlawful assault as a relatively minor form of that offence when considered in context.
Personal Circumstances
34You grew up in the town of Avenel. Your father was a shearer: hard-working and distant, both physically and emotionally. He was troubled by addiction and was sometimes violent. Your mother, with whom you were and are very close, was your consistent supporter and protector. You are close to your sister Sarah. Your relationship with your brother Rob is troubled by his difficulties and the implications of those difficulties for you.
35You have found yourself compensating for your brother’s problems as he works in construction locally and would accept payment for work then left undone. You filled the gaps to protect both him and your family from the consequences of his failures.
36You got your first job at 15 in the local newsagent and worked through high school and ever since. You completed high school and qualified as a carpenter through study at Shepparton TAFE. Since qualifying, you have worked without pause as a carpenter and concreter and you’re employed full-time.
37You and Teagan Clydesdale were married for 16 years and have two boys, aged 10 and nine. Their custody is shared and, I understand, has continued throughout your period on bail, albeit now governed by an intervention order which permits your safe contact with them.
38After the separation, which occurred in July 2020, you found your world – marriage, children – completely displaced, and you found yourself living with an aunt.
39The end of the marriage came to you as a total shock; it was seen much earlier by your wife. She moved in with Mr Speechley, though that relationship did not endure.
Matters in Mitigation
Early Plea
40You pleaded guilty at an early opportunity and your plea has inherent in it a range of more particular factors in mitigation. It’s an extension of your early admissions and acceptance of responsibility for what you did. It delivers a benefit to the community, but in particular to witnesses who were relieved from having to come to court. I accept that your plea is also evidence of your remorse, and I will return to this feature.
41At any time, this plea would be very valuable in mitigation of sentence. Notwithstanding that wait times in the County Court for trials are now contracting, your plea still earns the additional benefit that is due in the context of significant listing backlogs in the wake of the pandemic. I make it clear to you that were it not for this feature, your sentence would have been significantly longer.
Cooperation and Frank Admissions
42You took part in an interview with police in the early hours of 15 November 2021 and made full admissions. The account that you gave police was unvarnished. Your frankness and cooperation made their investigation faster and simpler.
43I accept that you have, through what you did, and what you later said to others, and in a letter written by you and tendered on your plea, established that you are genuinely remorseful for and ashamed of what you did.
44It’s significant too that after you drove away from the scene of your offending you arranged for Nick Ridd to come over. To Mr Ridd’s great credit, he took your firearm and locked it away in a safe. You were, at least by this point, able to accept help, and I acknowledge Mr Ridd’s clear and responsible act of friendship.
Psychological Material
45A report authored by Mr Simon Candlish was tendered. The report confirms that you have no serious mental health conditions nor personality impairment. A range of risk assessments were applied, after which you were considered to fall into a low-risk category for violence; a finding with which a later CCO assessment concurred. You have no drug or alcohol issues. All this informs my assessment of your prospects for rehabilitation. More generally, I have taken the psychological assessment into account; it enriches my understanding of your personal circumstances. It informs my assessment, in particular, of your prospects for rehabilitation.
46To your credit, in early May 2022 you commenced treatment with Mr Jankowski in a one-on-one format. I note this was an alternative treatment to a ‘Men’s Behaviour Change program’ which you sought out but could not obtain a place in. Two letters authored by Mr Jankowski were tendered. You have, through your consistent engagement with this counselling, demonstrated again your acceptance of responsibility and your willingness to form a better understanding of what led to your offending, and therefore to reducing the likelihood of you offending in a similar way again.
47I also received a letter authored by Carmel Pati, clinical psychotherapist, from whom you accepted treatment for anger management. Ms Pati’s letter attests to your sincere engagement with that process.
Previous Good Character
48On your plea I received an abundance of material from the community of people who are your family, workmates, and friends. You have captained cricket and football teams in the town, been a junior member of the Avenel CFA and helped at community events. The letters uniformly illustrate that your offending was an aberration in the context of your otherwise decent life. You have spoken about what you did with your family and friends and repeatedly expressed your shame and regret about what you did. You are integrated into local institutions in your community. You do unpaid repair works for the town’s facilities. You are well regarded as a builder, employee, son, brother and friend.
49The letters speak of your devotion to your boys and of your commitment to financing an additional loan to allow the boys to remain in the family home after the separation. The overall picture of is of someone who is surrounded by the support of family and friends and work colleagues in a small community. I take into account the rich reference material in your favour. You're clearly a person who is generally and previously of good character and who will in future enjoy the support and affection of a great many people. I conclude that your prospects for full rehabilitation are excellent.
Hardship of Imprisonment
50You are clearly a devoted father, and your sentence will mean your separation from your children for a time. According to the reference of your sister, it is clear your sons are at an age when they will feel your absence keenly and you will sympathise with their suffering while you are away from them. I accept that your worry about them and the disruption that you have caused the relationship with them will weigh heavily upon you during your term of imprisonment.
51I also note that you will be in gaol during the time prisoners are subject to more difficult circumstances on account of measures taken to manage the spread of the COVID-19 virus and I take that into account.
Sentencing Principles
52The higher courts consistently articulate the principle that the crimes committed by disappointed spouses call for appropriate denunciation and punishment. Moreover, the role for general deterrence in cases of violence committed in a family context is powerful. This sentence must demonstrate to others, particularly others involved in painful and difficult separations, as they all are, that even in the most emotionally stressful situations, there is no warrant to express anger and frustration through violence, and that a failure of restraint will be met with significant consequences.
53I regard the requirement for this sentence to achieve specific deterrence, that is, to deter you from ever behaving in this way again, is negligible. You have already taken steps towards your rehabilitation, that is, to gain a better insight into how you need to manage your emotional states. The corollary is that the role for community protection is also reduced.
Victim Impact
54I note that your victims were advised of their rights to file statements about how your offending affected them and they chose not to do so. But I sentence you on the basis that you imposed terror in the phone call to Ms Clydesdale and to Mr Speechley as he waited inside his home to hear shots fired through his front door, during which time he wouldn’t necessarily have known you’d stop there. Ms Clydesdale no doubt suffered through these moments too and I take the fears of your victims into account on your sentence.
Sentencing Practices
55The offence pursuant to s131A of the Firearms Act is relatively new and consequently the landscape of sentencing practice for this charge is thin. I have read the cases that are available.[5] Most seem to be committed by persons already prohibited from possessing firearms, in the context of ongoing drug or gang-related offending and have a more broadly violent context. Your case sits outside these boundaries, but within, as I have already said, the family violence category.
[5]DPP v Brooke [2020] VCC 569; DPP v Doodt [2021] VCC 1584; DPP v Smiljanic [2020] VCC 495; DPP v Taylor [2019] VCC 2220.
Consideration
56You are remorseful, already some way down the path towards rehabilitation, well supported in the future, and have the twin tasks of the raising of your boys and carrying on your profession as a builder to both look forward to and support you.
57What remains though is the profound seriousness of what you did and for which it was sensibly conceded by you through your counsel, that a period of immediate incarceration is unavoidable. I conclude that nothing less is sufficient to meet the gravity of what you did.
58I was urged to consider combining such a sentence with a community corrections order. Your counsel, Mr McGarvie, submitted that this form of disposition could meet, and meet in the right measure, the need for primary sentencing objectives of general deterrence and denunciation.
59I was much assisted in this case by mature submissions from both sides of the Bar table, both the concession that immediate incarceration must flow, and the Director’s concession that a ‘combination’ sentence could meet the sentencing requirements in this case, and that is why I had you assessed for a community corrections order.
Disposition
60On Charge 1, threat to inflict serious injury, you are convicted and sentenced to two months’ imprisonment.
61On Charge 2, discharging a weapon with reckless disregard for safety to another, you are convicted and sentenced to 9 months’ imprisonment, in combination with a Community Corrections Order of 30 months’ duration.
62On the related summary offence of unlawful assault, you are convicted and sentenced to seven days imprisonment.
63On each of the two failure to store a firearm or ammunition charges, you are convicted and fined $300 on each charge.
64I direct that one month of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2, making a total effective sentence of 10 months’ imprisonment, with a community corrections order of 30 months, with an unpaid work component of 250 hours. The total fine for the firearms offences is $600.
65I note that there is no pre-sentence detention to declare.
CCO
66I am going to read you the conditions of the Community Corrections Order; that will be a duration of 30 months. Once I have read through the conditions, I will allow you to take some advice from Mr McGarvie and I will be asking you whether you consent to the making of that order.
67You will be first subject to the standard conditions of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 30-month period. If you do, you will be brought back to court before me and, in all likelihood, resentenced.
68You must report to the Seymour Community Corrections Service within two days of your release from custody. So within two days of your release, you go to Seymour CCS.
69You are required to advise your supervisor in the corrections office of any change of address where you are living or working, and you must do so within two clear working days.
70It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections officer. You are not able to leave the State of Victoria without their prior permission, and that is for the entire 30 months.
Special Conditions
71I attach one special condition, and that is that I require you to perform 250 hours of unpaid community work over the term of this order. I have considered but am not imposing further rehabilitative programs, in the light of the work you have already done and noting the recommendations made by corrections, in particular, that minimising interventions in cases such as yours assists to maintain a low risk of recidivism.
72Mr McGarvie, would you give some advice and take instructions and then I’ll be asking whether your client will consent, and then we’ll also prepare the paperwork for him sign.
73I make the disposal and forfeiture orders as sought.
74And I wish to thank counsel for their assistance in this case, which was of an exceptionally high standard, and please convey that to Mr Cordy as well, Mr Tudehope. Thank you.
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