Director of Public Prosecutions v Upham
[2016] VCC 1770
•22 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-00038
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN UPHAM |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 November 2016 |
| DATE OF SENTENCE: | 22 November 2016 |
| CASE MAY BE CITED AS: | DPP v Upham |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1770 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Conduct endangering life – possessing unregistered weapons - possessing explosive substance - cultivation of narcotic plant - possessing cartridge ammunition – possessing a controlled weapon - drink driving – driving whilst disqualified
Legislation Cited: Sentencing Act 1991, Road Safety Act 1986
Cases Cited:
Sentence: 42 months' imprisonment, 30 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions at hearing For the Office of Public Prosecutions at sentence | Mr J. Saunders Ms J. Kavka | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr L. Richter Ms J. Smith | Stary Norton Halphen |
HIS HONOUR:
1Stephen Upham, you have pleaded guilty to:
-one charge of conduct endangering life,
-one charge of possessing an unregistered general category handgun,
-one charge of possessing an unregistered Category A long arm,
-one charge of possessing an explosive substance,
-one charge of cultivation of a narcotic plant
and five transferred summary charges of:
-possessing a controlled weapon without lawful excuse (two charges),
-driving a motor vehicle without holding a driver's licence,
-possessing cartridge ammunition without holding a valid licence or permit, and
-driving a motor vehicle with more than the prescribed concentration of alcohol present in your breath.
2The charge of conduct endangering life carries a maximum penalty of ten years’ imprisonment.
3Possessing an unregistered general category handgun carries a maximum penalty of, for a first offence, seven years’ imprisonment or 600 penalty units, and for a second offence, ten years’ imprisonment or 1200 penalty units.
4Possessing an unregistered Category A long arm carries a maximum penalty of, for a first offence, two years’ imprisonment or 120 penalty units, and for a second offence, ten years’ imprisonment or 1200 penalty units.
5Possessing an explosive substance carries a maximum penalty of five years’ imprisonment.
6Cultivation of a narcotic plant carries a maximum penalty of 12 months’ imprisonment or 20 penalty units or both.
7Possessing a controlled weapon without lawful excuse carries a maximum penalty of 12 months’ imprisonment or 120 penalty units.
8Driving a motor vehicle without holding a driver's licence carries a maximum penalty of three months' imprisonment or 25 penalty units.
9Possessing cartridge ammunition without holding a valid licence or permit carries a maximum penalty of 40 penalty units.
10Driving a motor vehicle with more than the prescribed concentration of alcohol present in your breath, carries a maximum penalty of, in your case - since you have prior convictions for exceeding .05, and your reading on this occasion was in excess of 0.15 - 18 months’ imprisonment or 180 penalty units.
11You were born on 26 February 1971 and now are 45 years old. You were aged 44 at the time of the offending in late October last year.
12You do have a criminal record about which I will go into more detail later.
13As to the offending, the victims in this matter are siblings: Emma Kelsey, aged 22 and David Kelsey, aged 17. They reside in Healesville.
14Prior to this incident you and the victims were not known to each other.
15On Sunday 25 October 2015, Emma drove in her Mazda from Healesville to Yarra Junction to collect David from a friend's place. After arriving at her destination, she called her brother to come out to the car. They later left to return home to Healesville.
16At approximately 9 pm, the victims turned left at Dalry Road to drive from Launching Place towards Healesville. A short distance into their journey they came across a small grey car which was travelling at about 50 to 60 kilometres an hour in an 80-kilometre zone. Emma formed the view that it was too dangerous to overtake the car in front, so she elected to stay behind.
17Shortly after this she noticed a vehicle approaching from behind. The vehicle was travelling quickly and had its lights on high beam. Emma told David about the vehicle.
18Both victims then observed this vehicle – being your vehicle – a Nissan Patrol, continue to tailgate their vehicle, continually flash its headlights and attempt to overtake even when it was unsafe to do so.
19Not long after the initial encounter with your vehicle, the small grey vehicle in front pulled over and Emma continued driving towards Healesville at 80 kilometres an hour.
20Your vehicle continued to follow close behind Emma's car, continually flashing your lights as you travelled along Dalry Road. The bright headlights and the illuminated light bar which sat between the headlights on your vehicle were so close that they were blinding.
21At times your vehicle came so close to hers that Emma believed it was about to collide with her car. Both victims described being very scared by what was occurring. You followed Emma's car for approximately 15 kilometres into the main street of Healesville.
22In the main street of Healesville, near the bakery, David lent out of the passenger window and screamed "What are you doing?".
23David then noticed what he thought was a gun being produced by you, the driver, out of your window and he shouted at his sister to duck.
24At that moment the victims heard a loud bang and the rear window of their car shattered. This constitutes Charge 1 on the indictment.
25Emma accelerated in an attempt to get away from your vehicle, which was continuing to flash its lights on and off high beam. At about this point, David called 000. During the phone call with 000, David advised the operator about the firearm incident.
26At the traffic lights near the East End Fish And Chip shop, Emma turned left off the highway and into a number of side streets in an attempt to lose your vehicle.
27Your vehicle followed the victims, who eventually lost sight of it. The victims were directed by the 000 operator to go into the Coles carpark where it was arranged for police to meet them.
28Shortly after the victims pulled into the carpark the police arrived and spoke with them. During the short conversation David saw a car pass by which he thought was yours. Police attempted to follow the vehicle, but by the time they got to the highway, it had disappeared. It is not suggested that this was in fact your vehicle.
29The police returned to the Coles carpark where, shortly after, you drove your vehicle into the carpark through a different entry. Police approached your vehicle and asked you if you had a firearm in your vehicle. You indicated to police that you did and it was in the console of the car. You were then arrested and placed into the police vehicle.
30Police searched your vehicle and located a handgun in the console. This gave rise to Charge 2 on the indictment. I note that it was later identified as a .22 RL Colt Diamondback Revolver and subsequent examination showed it to have all cylinders loaded with a fired cartridge under the hammer.
31Police also located various types of cartridge ammunition and shells - that relates to Summary Charge 16 - and a machete - Summary Charge 24 - and a small amount of cannabis in the vehicle. When you were searched you had a small knife in a scabbard on a chain around your neck - Summary Charge 8.
32You underwent a preliminary breath test after your arrest which provided a positive result.
33Whilst at the carpark police inspected Emma's car and identified what appeared to be a bullet hole in the rear driver's-side passenger headrest. Upon subsequent inspection by forensic officers, a .22 calibre Winchester copper-coated fired bullet was recovered from the headrest.
34Following your arrest you were conveyed to the Healesville Police Station.
35You underwent an evidentiary breath test at the Healesville Police Station where your result was 0.156 grams of alcohol in 210 litres of breath. This relates to Summary Charge 20.
36You are not licenced to drive a motor vehicle in Victoria, with records showing that you have never held a Victorian drivers licence. This relates to Summary Charge 10.
37At the Lilydale Police Station, you were assessed as being unfit for interview and were transferred to the Ringwood Police Station pending an assessment by a forensic medical officer.
38At approximately 7am you were deemed to be fit for interview after being assessed by the forensic medical officer.
39During the course of your interview, you made partial admissions. You stated amongst other things: "The cocksucker shot at me. It's fuckin every man's right to … The aim of the game is to stay alive, isn't it?". You also said that the victims were shooting at you. When asked "Did you want to kill these people in the car?", you responded, "Certainly not". When asked why you shot at them you responded, "I fuckin told you, they shot at me".
40Following the record of interview, you had a conversation with Detective Senior Constable Roach where you admitted that you had further firearms, ammunition, cannabis and explosives at your home.
41On 26 October 2015 search warrants for firearms, illicit drugs and explosives were applied for in relation to your address in Steels Creek Road, Steels Creek.
42On searching the premises, police located:
· Firearms (air rifles) – represented by Charge 3 on the indictment;
· Quantities of various types and amounts of cartridge ammunition - summary charge 16;
· In a safe inside the premises, a cartridge of explosive powder gel and detonator with wires - Charge 4 on the indictment;
· 1 large cannabis plant (437 grams) in an indoor hydroponic grow room;
· 30 seedlings weighing 10.3 grams (the seedlings and the plant constitute Charge 5 on the indictment);
· Numerous containers with amounts of dried cannabis (the total combined weight of all the cannabis was 2.26 kg); and
· Hydroponic equipment.
43Since your arrest on 25 October 2015, being the date of offending, you have remained in custody.
44I now turn to your personal circumstances.
45As I noted earlier, you are presently 45 years of age and you were 44 at the time of offending.
46Your criminal record commences on 5 October 1988 when, at the age of 17, you were fined in the Ringwood Magistrates' Court for unlicensed driving. Your driving offending - often involving alcohol - continued over the next few years, up to 2005 in fact, and you have been variously fined, put on a community-based order, in fact two (each of which you breached), and imprisoned for your driving offending over that time.
47Between 1989 and 2008 you have also been sentenced for stealing a motor vehicle, negligently causing serious injury, recklessly causing injury, criminal damage and various drug and weapons offences. In August 2008 you were fined a total of $800 for weapons and drug offences.
48Whilst never having been licenced to drive, you have accumulated six prior convictions for driving whilst exceeding the prescribed concentration of alcohol. You have committed weapons offences on three previous occasions. You have been imprisoned on three previous occasions, the longest period being for three months.
49Your more detailed personal history was set out in the psychological assessment and report of Mr Jeffrey Cummins, consulting clinical and forensic psychologist.
50In basic summary, you experienced learning difficulties as early as primary school, repeated Grade 3 and 4 and eventually left school at age 15 not having passed Grade 8. Since then you have worked at labouring jobs.
51You have a tragic alcohol and illicit drug abuse history. You have reported that you started drinking alcohol at age 10 or 11 and considered it a problem by the time you were 15 and were drinking daily. It has been a 30-year habit and your only sobriety has been when you have been in gaol. You estimate that leading to this offending you were probably averaging six long necks and about a half a bottle of spirit daily.
52As to your drug use, you began experimenting with cannabis at age 12 and were a daily smoker by age 13. In recent times you have grown your own cannabis and were typically smoking about a quarter of an ounce daily.
53Despite your addiction to alcohol, and most probably cannabis, you have managed to maintain a consistent history of work as a vineyard labourer and have established a respected reputation as a quiet, loyal, hardworking and decent man, caring and considerate of others. Consistently with this, you have also managed to maintain a long term close relationship with your partner.
54You grew up in the eastern fringes of Melbourne and have always lived in the bush and worked outdoors. You hunt and fish regularly. Tragedy struck in 2009 when you were living in Castella and you and your partner became victims of the Black Saturday bushfires. You lost the home you were living in, along with most of your personal possessions.
55You lost 14 friends to the fire and, perhaps more deeply personal to you, you were forced by circumstances to put down two of your hunting dogs. During the fire you retreated to assist the owner in defending the Toolangi Tavern. You were subsequently evacuated under police escort. You have never received any treatment or counselling for that experience.
56Mr Cummins assessed you as most probably suffering post-traumatic stress disorder as a result of the Black Saturday experience, evidenced by frequent and often daily flashbacks and some nightmares, and an adjustment disorder with mixed anxiety and depressed mood. You also meet diagnoses for severe alcohol use disorder, and moderate severity cannabis use disorder.
57Your recorded breaches of the criminal law and road traffic law further reflect a history of chronic alcoholism.
58I now turn to your explanation for your offending behaviour in this instance.
59On your plea your counsel developed an explanation for your conduct in shooting at the victims, building upon your assertions in the police interview that you had been responding to having been shot at by a person in the victim's car. This is said to have related to a previous series of incidents of terrifying attacks upon the property of your landlord, and threats to him and his family from a person engaged in a form of vendetta about family, money and property. These incidents have included cars being burnt out, a house burnt down, the desecration of a gravesite, shots having been fired and messages left at the family's property, including at the residence on the property which you lease from the family.
60Whilst I accept that such a disturbing history existed at the time, I do not accept, on the evidence, that any of this had any basis for a belief held by you that, at the time of following the victim's car, you had been shot at and your act of shooting was a result of misunderstanding, hypervigilance and/or paranoia.
61Even in an alcohol-affected state there is no substance to the notion that you could have formed a view that the car you had been following, which had been travelling at a relatively slow speed - and away from you - had anything to do with previous violent attacks and threats to your landlord's property.
62On the contrary, the evidence has all the hallmarks of a frustrated driver's road rage: you proceeding at a faster rate of speed to the rear of the Mazda, tailgating that vehicle over a sustained distance, continually flashing your headlights and illuminating a front light bar, attempting to overtake when it was unsafe to do so, then shooting into the rear window shattering it when the passenger remonstrated with you, then continuing to follow the vehicle when it attempted to escape you by speeding up and taking diversionary actions into side streets.
63The victim impact statements tendered provide eloquent testimony to the emotional damage that can result from such terror, including disturbing nightmares and insomnia, hypervigilance, anxiety, loss of enjoyment of life, tearfulness, reluctance to leave the home and loss of both confidence and optimism.
64The conduct for which you now fall to be sentenced embraces a wide range of serious offending. Whilst principally the charge of conduct endangering life is the most serious, I also regard the seventh occasion of you driving a motor vehicle when unlicensed and exceeding the prescribed blood alcohol limit as serious conduct.
65You have shown a persistent disregard for the law and to the sentences of the various Magistrates' Courts, to the very great danger of other members of the community. The conduct in shooting at another road user, in the context of threatening and dangerous driving, created a really terrifying experience for the victims and is a serious example of this offence.
66The shot you fired shattered the rear window of their car, and the proximity of the shot to the occupants was demonstrated by the .22 calibre bullet recovered from the driver's side rear headrest.
67Apart from the matter of actually discharging the weapon at persons, the fact also of driving through the community carrying a loaded handgun is itself intolerable and a serious instance of the offence of possession of such an unregistered weapon.
68Your record of repeated instances of driving whilst unlicensed or disqualified has reached serious proportions and the repetition of weapons possession offences is also a matter of serious concern.
69In mitigation, I accept the matter submitted by your counsel, and in particular that:
· you are vulnerable to offending due, in particular, to your chronic alcoholism and regular cannabis use, exacerbated by your reaction to the trauma you suffered as a result of the 2009 bushfires;
· you had very likely been also suffering anxiety at the time of the offending in the context of the incidents of violence which had attended your residential circumstances;
· you are otherwise a very well-respected and hard worker who has consistently maintained full and regular employment over many years despite the very difficult personal challenges extending back to your early youth;
· you have also maintained a close personal relationship for an extended period and have close family support;
· you have expressed remorse by having pleaded guilty to all offences and at an early stage, and further expressed your remorse through your counsel when you realised the terrifying ordeal you had put your victims through;
· you have assisted police in their enquiries by making admissions at an early stage as to what you possessed at home;
· you have not offended over the past eight years, which I accept suggests that you have reasonable prospects of rehabilitation, particularly if you seriously address your alcoholism; and
· despite the existence of some offending for offences of violence in the past, I note that the penalties do not reflect serious violence and that they occurred between 15 and 26 years ago - the references tendered by those that know you well reflect that the behaviour you exhibited on this occasion of reckless conduct is generally uncharacteristic of your demeanour.
70The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific to you and general to deter others that may be like-minded to offend, rehabilitation, denunciation and protection of the community. In sentencing I must have a regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
71I accept that your rehabilitation is a significant matter in this case and that it would likely be enhanced by a significant period undertaking treatment within the community. However, after very careful consideration, I have decided that a disposition involving imprisonment tailored with a community correction order would not adequately reflect the serious nature of your offending, in particular in relation to Charge 1 and in light of the legislative restrictions on the length of time that may be served in actual custody. In my view, principles of general deterrence remain of high significance.
72Mr Upham, could you please now stand.
73On Charge 1 on the indictment of conduct endangering life, you are convicted and sentenced to three years’ imprisonment.
74On Charge 2 on the indictment of possessing an unregistered general category handgun, you are convicted and sentenced to 12 months’ imprisonment.
75On Charge 3 on the indictment of possessing an unregistered general Category A long arm, you are convicted and sentenced to three months’ imprisonment.
76On Charge 4 on the indictment of possessing an explosive substance, you are convicted and sentenced to six months’ imprisonment.
77On Charge 5 on the indictment of cultivation of a narcotic plant, you are convicted and sentenced to two months’ imprisonment.
78On each of the Summary Charges 8, 16 and 24, that is, the control weapons and cartridge offences, you are convicted and fined $120.
79On Summary Charge 10 of unlicensed driving, you are convicted and fined $500.
80On Summary Charge 20 of driving a motor vehicle while more than the prescribed concentration of alcohol was present in your breath, you are convicted and sentenced to four months’ imprisonment and pursuant to s.50 of the Road Safety Act, you are prohibited from driving for a period of six years, effective from 25 October 2015.
81Charge 1 is the base sentence.
82I direct that three months of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 4 and two months of the sentence imposed on Summary Charge 20 be served cumulatively on the sentence imposed on Charge 1 and upon each other. The sentences are otherwise concurrent.
83The total effective sentence is 42 months’ imprisonment
84I direct that you serve a minimum period of 30 months before being eligible for parole.
85The sentence starts today.
86Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 394 days, not including today, be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
87Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed on all charges, both on the indictment and transferred, is five years’ imprisonment with a minimum period of four years to be served before eligibility for parole.
88At the plea hearing, the Crown sought forfeiture and disposal orders to which you consented, and I have made those orders also today. Are there any other matters from either counsel?
89MS KAVKA: No, Your Honour.
90MS SMITH: No, Your Honour.
91HIS HONOUR: All right, thank you. Mr Upham may be taken away now, please.
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