Director of Public Prosecutions v Stokes

[2018] VCC 1949

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02527

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS STOKES

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 November 2018
CASE MAY BE CITED AS:	DPP v Stokes
MEDIUM NEUTRAL CITATION:	[2018] VCC 1949

REASONS FOR SENTENCE
---

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

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Edwards
For the Accused	Mr J. Lowy

HIS HONOUR: 

1Nicholas Stokes, you have pleaded guilty to an indictment containing four charges.  Charge 1 alleges the offence of prohibited person possessing a firearm carries a maximum penalty of ten years' imprisonment or 1200 penalty units.  Charge 2 alleges the offence of intentionally causing serious injury, which carries a maximum penalty of 20 years' imprisonment.

2Charge 3 alleges the offence of false imprisonment which carries a maximum penalty of ten years' imprisonment. Charge 4 alleges the offence of theft of a motor vehicle, which carries a maximum penalty of ten years' imprisonment.  At the time these offences were committed you were 27 years of age.  You are now some 29 years of age.  The circumstances in which you came to commit these offences are set out in a detailed prosecution opening, dated
27 November 2018, a copy of which was tendered as Exhibit A on the plea hearing.

3I will not recite the full circumstances of your offending and for present purposes I will provide only the following outline.  You had known the victim in this matter, Malcolm Gill for about a year prior to this incident. He was a housemate of Drew Phillips, the owner of the stolen vehicle to which Charge 4 relates.  On the morning of Saturday, 1 April 2017, Mr Gill and a friend, Christopher Purvis, borrowed Mr Phillips' vehicle, an Audi sedan and drove around the Bendigo area for several hours, later picking you up at your home address.

4You requested to drive but Mr Gill refused saying that it was not his vehicle.  Some time later in the afternoon, the three of you drove to a secluded bushland area to smoke drugs.  When you arrived you reached over and removed the car keys from the ignition.  Gill exited the vehicle and attempted to retrieve the keys from you, at which point he produced a rifle, which is the subject of Charge 1.  You threatened him and ordered him to get into the boot of the car.  When he refused you shot him in the leg, just below the knee, which constitutes Charge 2.

5You again demanded that Gill get in the boot and out of fear of further harm, he acquiesced.  That is Charge 3, false imprisonment.  You then drove around in the vehicle with Purvis in the front passenger seat and Gill locked inside the boot for some six hours.  On several occasions you stopped in order to tie Gill's hands together with electrical tape and zipper ties and provide him with some water.  At one point you stopped and directed another male to tie Gill up with rope.

6At around 8:00 pm that night the vehicle was parked on the outskirts of Bendigo, Gill still trapped inside the boot could hear Pervis standing outside the vehicle but could not hear your voice.  Seizing on this opportunity to escape, he managed to crawl from the boot to the cabin, before getting into the driver's seat and driving home.  When he arrived home, his partner observed the bullet hole below his knee, blood on his clothes and that he smelt of urine.  Terrified, Gill told her that he had been shot but did not reveal any further details.

7He eventually agreed to go to Bendigo Hospital to have his wound treated where he told hospital staff he had been attacked and shot by two men wearing hoodies and they notified the police.  Gill then underwent surgery to remove the bullet, which had from its entry point, some 15 centimetres below the knee, travelled some 22 centimetres downwards to lodge itself at the top of the ankle.  He was released from hospital two days later.

8Dr Gidley later assessed the injury as healing well and indicated he had good prospects of recovery.  Despite this, Gill has stated that he still experiences pain and receives ongoing treatment. 

9On the morning of 2 April 2017, police seized the vehicle in question locating a Taser and rope.  Blood was observed on the inside of the vehicle and subsequent forensic examination located your fingerprints.  The following day, police spoke to Mr Gill and he named you as the perpetrator but refused to do so in a written statement, fearing reprisal.

10On 5 April, police began monitoring the residence of Mr Purvis and observed him leave the residence with a black duffle back and return later without it.  When he was questioned on 6 April, he admitted to disposing of a firearm belonging to you in nearby bushland.  Police were directed to the area and the firearm was discovered.  Subsequent ballistic analysis matched the bullet removed from Gill's leg to the firearm. 

11You were arrested on 25 July 2017, and that same day you participated in a record of interview in which you predominately gave no comment responses but you did admit drug use for some five or six years.  After your arrest, Gill make a formal written statement naming you.  The maximum penalties for the offences, particularly that of intentional cause serious injury, being 20 years imprisonment, are an important starting point for my consideration in this sentence.

12The legislature by these maxima have indicated the seriousness of these offences.  The objective gravity of your conduct can be gleaned from the circumstances on the offending which I have described.  This behaviour was apparently motivated by animosity against the victim, fuelled either by a desire to punish him or seek some vigilante-like retribution over allegations about which you have no evidence or information.

13I am not in a position to ascertain what the true motive may have been.  In a statement you made to police, you alluded to some such motivation or that a debt may have been involved.  Whatever the reasons, none of them provided a proper explanation for this gangster-like behaviour in which you and your accomplice engaged.  The victim would have been terrified.  He was not only bundled into the boot of a car when injured by a firearm injury but tired and driven in that state for hours before he was able to free himself and escape.

14He had been deprived of his liberty and shot.  Such behaviour is abhorrent and deserving of just punishment.  Despite the fact that you had probably used some methylamphetamine in the first part of the escapade and that you were at the time a regular user, this aspect is not mitigatory at all, cannot ameliorate your sentence.  It was properly conceded on your plea that your state of mind at the time was of your own making.

15You well knew the effect ice would have on you after use of it together with GHB. Whatever delusional, paranoid, auditory hallucinations you were experiencing, together with many days without sleep, was in fact, if that was your state of mind, of your own making.  And I repeat, not a mitigation.  You were neither mentally impaired, nor in the grip of a psychosis.  You knew of the presence of the gun and you produced it and shot it.  Your plea is an acceptance of each element of the cause serious injury offence, in particular, the mental element as to your state of mind.

16It is notable that on 19 September 2018, whilst in reclusion, you made a statement to police about these matters.  That statement sought to put a different spin on how the events came about and your participation traversing, in effect your plea of guilty.  In that statement you alleged that the gun was put in your hand by Purvis, that you did not know it was loaded, that you shot it by accident.

17You described the look on Mr Gill's face as you shot him as quite priceless.  You also go on to assert that having apologised to him for shooting him.  You then discussed with Purvis, "Getting rid of him", that is killing him.  I do not accept any of the contents of the statement and place no reliance on it whatsoever.  It is not an impressive document and is self-serving at its best and outright untrue at its worst.  I am not prepared to use it for any purpose.

18It was perhaps intended to convey an impression that you had collaborated with police in the investigation, in particular about the sourcing of the firearm involved.  The statement adds nothing of value to that topic or the investigation generally.  This view is shared by Detective Leading Senior Constable Barton who in a statement of 26 October 2018, says the statement provided no value.  The statement made by you was only referred during the plea as having been made and was not the subject of an undertaking.  It carries no or extremely limited weight in as much as it merely corroborates the previous account by other witnesses.

19However, the making of the statement itself, in which you speak of your accomplice and the firearm, I accept, may have exposed you to some risk.  Whether the statement is of value or not and I do take that exposure into account.  It was said your willingness to make such a statement should be taken into account.  I do not consider that it is of any benefit to you and should not assign it any weight but I will consider the mere fact of the making of that statement to be worth something.

20What has weight, and it was stressed by to the court from the first mention of this matter before me in Bendigo in August 2018, is that the plea of guilty is of considerable value.  That was fairly considered by the learned trial prosecutor.  It was explained that there "were a number of live evidentiary issues and the Crown had some difficulties with a number of witnesses", which were not insurmountable but which nevertheless I understood to mean were complications in respect of the prosecution and the prospects of conviction.

21It was conceded you should receive a significant benefit from your plea.  I accept this candid acknowledgement and will apply an appropriate discount for this aspect, which could also be described as utilitarian, as the other recognised aspects of having avoided a trial, facilitate the course of justice and accepted responsibility for your actions.  The plea was not, however, entered at the earliest opportunity.  There was a contested committal.  The trial was listed for 31 July 2018.  You were arraigned and pleaded guilty only on 16 August 2018, and this lateness affects the discount slightly.

22Victim impact statements were received.  Mr Gill wrote out a statement in which he declared that the offence had a significant effect on his life, effects with which he is still struggling to deal.  He was traumatised by events during which he thought he was going to be killed.  He needed surgery, long rehabilitation and suffered severe pain.  He is still undergoing treatment.  The psychological trauma has not improved.  His relationships have suffered.  He suffers from nightmares, he is hypervigilant, has post-traumatic stress disorder and frightening flashbacks.

23He has been unable to work since the incident, has suffered financially and incurred significant costs to address the issues which now beset him.  He has become distrustful and isolated.  His son and a son's partner, who used to live with him, moved out as a result of feeling unsafe and this has further degraded his family connections.  These effects, as described, are typical of the damage caused by victims of violence and as consistent with what the court sees daily and hears from victims.

24These effects can often be lifelong or at least difficult to manage for extended periods.  Often the victim is left to deal with the trauma long after the offender has dealt with and moved on from the issues that were at the heart of the criminal conduct.  I take Mr Gill's victim impact statement into account.  His partner has also provided a victim impact statement.  She attests to her own post-traumatic stress disorder which has been addressed by counselling for fear and stress and repetitive panicked thoughts.  She has had to increase medication to deal with anxiety and depression and her sleep is limited and disturbed.  She has been impacted socially.  Her relationship has been altered with isolation, lack of trust, sense of hopelessness and I take her statement into account.

25I take your personal circumstances into account.  You were born in Bendigo.  Your parents separated when you were five.  You experienced a childhood blighted by family violence by your stepfather.  You left school at age 15, have worked consistently for much of your adult life.  At a young age you formed a long-term relationship and have an 11-year-old child and together have a cooperative parental relationship with his mother.

26You competed in motocross up until the age of 17, winning a number of competitions.  You began using drugs as a teenager and methamphetamine became a serious problem by about the age of 24 when you moved to Echuca.  Age 20, you appeared in court for burglary, theft and for assault amongst other charges but you were fined without conviction on both occasions.  A five-year period ensues where no court appearances are recorded but then in 2014 you were placed on a community corrections order for 12 months for assaults, using drugs of dependence and trafficking methylamphetamine and heroin, as well as driving offences.

27You committed further offences in 2015 in contravention of that order, again, possessing and using ice.  The contravention meant a suspended sentence of three months in 2015 was imposed and a month imprisonment followed in 2015 for further theft and bail offences.  These offences clearly are an escalation in your criminal conduct.  An expert report from Dr Aaron Cunningham, a forensic psychologist, dated 5 October 2018, was placed into evidence.

28Dr Cunningham elicited from your background history, which included a description of your difficult early years, which included assaults upon you.  He highlights the relationship breakdown due to drug abuse but that currently your ex-partner and son visit you in prison from time to time.  He made a mental health assessment and diagnosed a substance-induced psychotic disorder.  You told Dr Cunningham you went along with your friend's idea to terrorise the victim.  You regretted this behaviour.

29However, Mr Cunningham's clear opinion is that your psychosis did not directly contribute to your offending actions.  He noted that you had been prescribed medication whilst incarcerated and have experienced improvement in your mental health.  You have completed courses and appear motivated to engage with drugs and alcohol and mental health support.  I accept that you have family support and you are displaying a somewhat positive attitude to your rehabilitation.  Your prospects are probably reasonable.

30You have obtained work in the prison workshops and your current partner and mother visit you regularly.  These are protective factors, all of which I take into account.  I am conscious that where there is a firearms offence, pleaded to such as Charge 1 on this indictment, I should guard against the risk of double punishment, where that firearm is used in effect in the commission of further offending, such as Charges 2 and 3.  I have no evidence that in relation to the possession of the firearm, to suggest that its possession was for some criminal purpose, distinct from the activity in the other relevant charges of causing serious injury intentionally and false imprisonment.

31However, the possession of the firearm, as a prohibited person, may be regarded as an aggravating feature in the serious injury charge and false imprisonment charge.  It is therefore incumbent on me not to punish again for the same conduct.  I will impose a sentence on count one in relation to the possession of a firearm, which does not include any penalty for the use of the firearm in the course of committing offences two and three and order some brief appropriate cumulation for this offence upon the sentences for those charges in recognition of its discrete nature.  Please stand.

32On Charge 1 of being a prohibited person in possession of a firearm, you are convicted and sentenced to 18 months' imprisonment.  On Charge 2, on causing serious injury intentionally you are convicted and sentenced to six years' imprisonment.  On Charge 3 of false imprisonment, you are convicted and sentenced to three years' imprisonment and on the charge of theft, you are convicted and sentenced to 12 months' imprisonment.

33I order that Charge 4 is wholly concurrent with the base sentence.  I order that one month on Charge 1 and 11 months on Charge 3, be cumulated on Charge 2, the base sentence, making a total effective sentence of seven years.  I order a non-parole period of four years.  I declare that you have served 485 days by way of pre-sentence detention, excluding today and note that number for the court's records.

34I have signed and order a forfeiture and disposal in relation to the firearm and I have signed that order.  And but for your plea, I would have imposed a total effective sentence of eight and a half years, with a non-parole period of five and a half years.  I will hand down the forfeiture and disposal orders.  Are there any other ancillary orders?

35MS EDWARDS:  No, Your Honour.

36HIS HONOUR:  Thank you.  I note that Mr Stokes' family is in court.  I will wait on the Bench.  They can approach him.  Unfortunately they can't have physical contact with him.  Perhaps Mr Lowy, you can coordinate that briefly.

37MR LOWY:  Yes, Your Honour.

38HIS HONOUR:  Yes, you can remove Mr Stokes, thank you.  Sine die.

‑ ‑ ‑