Director of Public Prosecutions v Templar

[2019] VCC 1925

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00351

DIRECTOR OF PUBLIC PROSECUTIONS

v

TREVOR TEMPLAR

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2019
DATE OF SENTENCE:	20 November 2019
CASE MAY BE CITED AS:	DPP v Templar
MEDIUM NEUTRAL CITATION:	[2019] VCC 1925

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Engage in conduct endangering persons – prohibited person possess a firearm.

Cases Cited:Berichon v The Queen [2013] 40 VR 490, DPP v Basic [2017] VSCA 376.

Legislation:s. 145 Criminal Procedure Act 2009.

Sentence:Total effective sentence of three years’ imprisonment with a non-parole period of two years’ imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Hardjadibrata	Director of Public Prosecutions
For the Accused	Mr J. Barrera	Stary Norton Halphen

HIS HONOUR:

1Trevor Templar, on 20 November 2019, that is today, at the Horsham County Court, you pleaded guilty to the following charges on Indictment No.J11919869:

Charge 1, of engaging conduct endangering a person of serious injury; this charge has a maximum penalty of five years' imprisonment. 

Charge 2, being a prohibited person in possession of a firearm; this charge has a maximum penalty of 10 years' imprisonment or 1200 penalty units. 

2At the time of your plea hearing, you consented to two related summary charges being heard at the plea. Pursuant to s.145 of the Criminal Procedure Act, the following summary charges were heard, and you pleaded to the following:

Charge 13, you did possess cartridge ammunition without being the holder of a licence, that charge has a maximum penalty of 40 penalty units;

Charge 14, you did carry or use a firearm whilst under the influence of intoxicating liquor, this charge has a maximum penalty of 120 penalty units of four years' imprisonment.

3You have admitted prior convictions for firearms offences, driving offences, theft of a motorcar and numerous drink driving offences. 

Circumstances of the offences

4The offences occurred at Yanac on 20 July 2018.  Trevor Templar, you are known by the nickname of 'Evil'.  At the time of the offence you were 64 years old.  You turned 65 a couple of days ago.  At the time of the offence, your victim, Kody Ross, was a 22 years old.  There was a history of hostility between you and the Ross family, or members of the Ross family. 

Summary of the offending

5On 20 July 2018, Kody Ross had finished work and had driven to his brother's place in Yanac.  Jye Ross, who is the brother, and his girlfriend, Demi-Lee Harberger were at that residence. They lit a fire in the shed, had a few beers, and were planning to cook a barbeque, and began watching the football that night.  At approximately 8.20 pm, Chris Loracco and his girlfriend arrived at the premises to watch the football as well. 

6At approximately 8.45pm, Kody Ross, along with Jye Ross, and Chris Loracco and his girlfriend, were all present at the shed when Harberger was in the house.  At this time, Kody Ross heard a car and saw lights through the shed window.  Jye Ross looked out of the shed and said, 'That's Evil'.  Mr Kody Ross knows you by ‘Evil’ and by your name, Trevor Templar.  You resided in Francis Street in Yanac at the time of the offending. As mention previously, there is a history of hostility between the families, or between you and the Ross family.

7Kody Ross looked out of the shed door and saw your green HiLux ute reversing out of the driveway and then driving into the direction of your own home, and parking in that driveway.  Kody Ross could hear you yelling loudly and aggressively.  Kody Ross did not think that you knew he was at Jye Ross' house at that time and walked through a vacant block which was near your house. 

8You challenged Kody Ross by saying, 'Do you want to play games, do you?'  You repeated those words to Kody Ross.  There was approximately 15 metres separating you.  Ross asked you, 'What do you mean?' 

9Events then escalated when you replied, 'I’ll shoot you'.  At this stage, you had walked out of onto the road, and Kody Ross saw you were holding a rifle.  He said to you, 'What the fuck have you got the gun for?'  You have then proceeded to raise the firearm to your shoulder, pointed it at the ground in front of him and discharged the firearm. 

10Kody Ross believed the gun was a .22 rifle and felt the bullet fly past him to his left side.  Ross noticed that you were then endeavouring to open the bolt of the rifle and believed that you were going to reload the rifle.  He has then charged at you in order to prevent you from shooting at him again.  He has then punched you in the face, and the rifle has fallen to the ground. 

11After hearing the gunshot, Jye Ross, ran towards where Kody and you had been standing and saw his brother running towards you.  Jye Ross also observed that you had the gun near him and was pointing generally in the direction of his brother.  Jye Ross, then ran towards you, grabbed the gun, threw it away, and both Kody and Jye Ross jumped on top of you, holding you down to the ground. 

12Senior Constable Williams attended the scene and observed the damaged firearm, which he had photographed.  He removed the bolt and observed the discharged .22 cartridge in the firearm.  He removed the cartridge with a multi-tool, as it was stuck within the firearm. 

13You participated in a record of interview with police on 23 July 2018.  During that recorded interview, you made the following comments:

·You had been drinking since that afternoon.  I have been told during the course of the plea you had had a dozen cans.

·You had been collected from the pub by your partner.

·You had been wandering, as in going around, your own property. 

·You did not know whether you had said something to him or that they had said something to you. But you said Cody Ross, had just come bolting down. 

·You then must have taken a bit of offence or something.

·The firearm was old, and you found it in the shed.

·You do not have a licence for the firearm.

·You told police, 'If I can just poke this at him or shoot it in the air or on the ground or something, and stop him, maybe it will give us time to ring the coppers'.

·You then made the comment, ‘Well, look, this is loaded, piss off.’

14It was fortunate that the bullet casing, as I said before, jammed in the rifle and rendered it useless to everyone.  

Victim Impact Statement

15In this case, your victim, Kody Ross, as filed a victim impact statement, dated 31 May 2019; it was Exhibit “B” on the plea.  This statement was made after he had been cross-examined at committal and after the matter was listed for plea in May 2019. 

16Mr Ross sets out how he suffers from severe insomnia and cannot sleep without medication.  He has nightmares and sometimes wakes up in a sweat.  Mr Ross is receiving counselling.  Initially, he had three to four weeks off work after this offence.  Due to the lack of sleep and severe migraines he now suffers, he has rarely completed a full week of work since that offending. 

17Mr Ross states that he has stopped playing football, due to his anxiety about being around people.  He has reduced his social life to being just with family friends. 

18It is clear and understandable that your victim has been severely affected by your offending. 

Your Personal circumstances

19You have turned 65 years old this week.  At the time of the offending, you were 63 years old.  I have been told a little about your personal circumstances.  You were born in Melbourne.  Your parents divorced when you were approximately 11 years old.  You lived with your mother but continue to have contact with your father. 

20You completed Grade 6 at Romsey Primary School.  In 1969, you completed form 3, which was then known as proficiency, and now known as Year 9 at Sunbury. 

21In 1970, you moved to Euroa and lived with your father.  You worked in contract fencing there for a year. Your alcohol drinking was up and going by that stage. You were 16 years old.

22Between 1971 and 1975, you completed wool classing training in Brooklyn.  You had a brief period of work at an abattoir.  The longest period of employment was between 1977 and 1994, as interstate truck driver. 

23From 1995 to the time of your arrest for these offences, you worked as a casual farm labourer in sheep and cropping enterprises in the district around Yanac and Nhill.  This was established by the number of references tended, which were Exhibit “4” on the plea.   

24In 1985, you married Judith.  You were 30 years old and she was 42 years old.  In 1991, you divorced. But by 1994, at the end of your truck-driving work, you reconciled with Judith and you have lived together since that time. 

25In 1999, you moved as a couple to Yanac.  In 2014, Judith suffered a stroke.  In 2016, you were injured in a car accident and could not work for a period of some 12 months. 

26I note in the hospital records that on 21 July 2018, an old fractures of your left zygomatic arch and left maxillary antrum were present. These fractures may have been from the motor vehicle accident.

27It was submitted you had good family support and planned to return to Yanac after you have completed your sentence.  You have visits from your brother, Gary Templar, who lives at Lancefield and was present in court today to support you.  Your family support was put forward as a protective factor in respect to re-offending and promoting your rehabilitation. 

28You have numerous court appearances where alcohol has been a feature of your offending.  The offences are predominantly drink driving.  You have three relevant firearm offences in your criminal history. 

29You have a proven strong work history; that is your most significant factor in terms of rehabilitation.  You also have, as I've stated, family support and a long-term partner who awaits your return in the family home in Yanac. 

30Your biggest risk factor is your demonstrated addiction to alcohol.  You have actively engaged in courses whilst in custody. An impressive folder of certificates was submitted to prove that, which was exhibit “5”.

Sentencing Considerations

31The basic purpose for which a court may imposed a sentence of just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it, and your personal circumstances.

32I am also required to balance the interest of the community in denouncing your criminal conduct for the interest of the community and seeking to ensure, as far as possible, that you, as an offender, are rehabilitated and reintegrated into society. 

33I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exhaustively to the kind of sentences imposed in comparable cases and the statistics for those sentences at that time.  I have considered the statistics and current sentencing practices, mindful that each case must be considered in light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another.

34Of course, current sentencing practices is only one of the factors I am advised to take into account when finalising your sentence. 

35You have pleaded guilty to this charge. Your plea of guilty was indicated after a contested committal.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of the court and police resources to deal with other matters.  It also relieves Mr Ross from giving evidence again. 

36Your plea vindicates a public confidence in the legal process set up to protect the community, and your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.

37You have an admitted criminal history.  Relevantly, you have prior convictions for firearms offences;

·On 22 October 1992, at Holden Hill Magistrates' Court in South Australia, you were convicted and fined $200 for a charge of aid and abet discharge of a firearm to cause injury or damage to property.

·In October 1995, you were convicted and fined $1200 for possessing a firearm without a licence.

·In July 2014, you were sentenced to two months' imprisonment for firearms offences, breaching an original suspended sentence of two months imposed a month earlier at the Nhill Magistrates' Court.

38You also have convictions for using threatening words in public places and driving offences which resulted in a fourth month sentence in June 2015.

39You have numerous convictions for drink driving offences, which are indicative of the alcohol abuse problem for you; it features in Summary Charge 14. 

40Your offences of reckless endangering serious injury to Mr Ross by discharging a firearm in close proximity and in his direction, is a serious example of this offence.  You threatened to shoot him and then discharged the firearm.  There is no explanation for your actions. 

41The objective seriousness of the offending is indicated by:

(a), you confronted Ross and threatened to shoot him;

(b), you discharged the firearm at close proximity to him;

(c), you pointed the firearm in his direction and then fired the gun;

(d), it was dark;

(e), you were under the influence of alcohol whilst you were handling and shooting the gun and;

(f), you were a prohibited person from possessing a firearm at the time.

42Your behaviour could have resulted in a much more serious tragedy.

43In respect of Charge 2, being a prohibited person in possession of a firearm, the maximum sentence and appellate court pronouncements clearly set out the seriousness of this offence; the maximum penalty is 10 years.  As I have said before, you have three prior court appearances for firearms offences

44In the case of Berichon, Redlich JA made the following observation:

'The conduct of prohibited persons in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in the case of R v Graham, and Armistead v The Queen.  The first category of cases are those where the conclusions are not open, that the possession of the firearms associated with some ongoing criminal activity.  A sentence of a low order of imprisonment are usually appropriate, unless the previous criminal history of the offender warrants a more substantial sentence proportionate to the gravity of the offence. 

The second category of cases are those where the evidence enables a conclusion that possession is for the purpose of criminal activity or a specific criminal purpose.  More severe sentences are the usually in order.  Such sentences will be appropriate where the firearm is, for example, possessed in the context of criminal activity to provide security as a means of enforcement. The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.’

45This pronouncement of principle was more recently cited in the case of DPP v Basic [2017] VSCA 376. In your case, it is not the situation whether the possession of the firearm by you is associated with ongoing criminal activity. However, your previous firearm offences means that you warrant a more substantial sentence in this case. The offence itself is committed prior to you confronting Mr Ross and discharging the firearm.

46There is a degree of overlap in the criminality in respect of each of these charges.  The cumulation ordered in respect of each charge is appropriate to mark out the distinct additional offending in respect of that charge. The cumulation of the sentences must be moderated so as to not impose a crushing sentence on you and hence offend the totality principle of sentencing. 

47Your prospects of rehabilitation are guarded.  You have shown or expressed little signs of genuine remorse.  You maintain you were protecting yourself and your wife.  There is no evidence to support this proposition; you are the aggressor in this case, you are the one who engaged with Mr Ross in this case before any of this happened.  Your remorse is limited to your plea of guilty to the charges before the court. 

48The prosecution case against you was a strong case.  Whilst you have pleaded to a lesser charge than those faced by you at the committal, your victim, Kody Ross, was cross-examined and had to endure this revival of frightening memories or your offending. 

49An analysis of your offending indicates that your pattern of offending is getting more serious as you age.  You have a long record of alcohol related offending, this offending is the last of that kind. 

50It was submitted on your behalf that you have endured extra-curial punishment in the form of injuries you received when you were punched multiple times by Mr Ross after you had shot at him.  You spent three days in Wimmera Base Hospital and then at the Alfred Hospital. 

51Clearly, you were subjected to some enthusiastic self-defence and citizen's arrest at the hands of your victim prior to the police attending.  Based of the medical notes and reports tendered at the plea, you have expected a complete recovery.  I do not give much weight to this matter in your final sentence, but taking into account that you were injured shortly after your serious offending.

52It was also submitted that the appropriate sentence would be time served in combination with a community corrections order.  I accept that to date, you have served a total of 485 days pre-sentence detention, and that that period of time is the longest time you have spent in custody.  Nevertheless, your total offending on this occasion dictates that the only appropriate sentence is a term of imprisonment with a non-parole period. 

53I take into account the delay between your arrest and this plea date. Your extended period of time on remand has been disruptive to your chances of engaging in alcohol-related rehabilitation. 

54The delay has been in two parts.  The first part is between the date of arrest and the settlement of the charges, which was on 9 May 2019, this delay is normal in cases where a trial is to take place.  The second part of your delay is that your plea was listed in Horsham on 27 May 2019 circuit sittings, but was not reached.  You have been in a state of uncertainty and on remand from
9 May 2019 until November 2019. 

55The principles of general and specific deterrence have direct application to your offending with respect to the firearms.  The sentencing principles of denunciation, just punishment and protection of the community are best advanced by a sentence of imprisonment without any recourse to a community corrections order.

56Would you stand please?

57In respect to Charge 1, endangering serious injury, you are convicted and sentenced to two years' imprisonment, which is the base sentence. 

58In respect to Charge 2, a prohibited person being in possession of a firearm, you are convicted and sentenced to two years' imprisonment.  I order that 12 months of that sentence be served cumulatively on the sentence in Charge 1. 

59In respect to Summary Charge 13, possession of ammunition with a permit, you are convicted and fined a total of $1000 and;

60In respect to Summary Charge 14, using a firearm under the influence of alcohol, you are convicted and sentenced to six months imprisonment. I order this sentence to be served concurrently upon the sentence imposed in Charge 1.

61That is a total effective sentence of three years' imprisonment, and I order that you serve a minimum period of two years prior to being eligible for parole.

62Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to four years' imprisonment, with a minimum period of two years and nine months. 

63And I declare that you have served 485 days of the sentence I have just imposed, and I will sign the disposal and forfeiture orders.  Is there anything else?

64COUNSEL:  No, Your Honour.

65HIS HONOUR:  Thanks.  Effectively, what I have done Mr Templar, is I have sentenced you three years on the top, with two on the bottom, and you have served 485 days of the whole lot. 

66ACCUSED:  Yes, Your Honour. 

67HIS HONOUR: Thanks very much for your help and your submissions Mr Barrera, they were of great assistance to me.  Thanks, Mr Prosecutor, again.

68MR HARDJADIBRATA:  As Your Honour pleases.

‑ ‑ ‑