Director of Public Prosecutions v Vankerkoerle

[2018] VCC 680

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

AT GEELONG

CRIMINAL JURISDICTION

CR 18-00357

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL VANKERKOERLE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	15 May 2018
DATE OF SENTENCE:	15 May 2018
CASE MAY BE CITED AS:	DPP v Vankerkoerle
MEDIUM NEUTRAL CITATION:	[2018] VCC

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough	Office of Public Prosecutions
For the Accused	Mr N. Goodfellow	Criminal Lawyers Geelong

HIS HONOUR:

1Mr Vankerkoerle you can remain seated for the moment.  Joel Vankerkoerle around September 2017 you had become angry with the man your then girlfriend had been in a relationship with in the past.  You sent threatening text messages to him.  This man lived with his new partner and young daughter at an address in Norlane.  On the morning of 1 September you were the passenger in a car driving past the house where you knew this man and his new partner lived.

2There were others residing or visiting at the house.  At the time though fortunately the young child was absent.  As you were being driven past you aimed your 12-gauge shotgun loaded with solid point ammunition at the house and fired.  Projectile went through the front window and hit the wall on the opposite side.  Fortunately for the four occupants and for you no one was hit and injured.  The victims were shaken.

3After further texts that you sent to the victim, you returned to the same street and again fired your shotgun into the house.  Again, no one was physically injured.  Shortly after you sent threatening texts indicating that more shooting was to come and making clear that you wanted to shoot the victim and members of his family.

4As it turns out you are friendly with one or other of those that were at the house at the time.  Your animosity was to the man you had been exchanging text messages with.  You were arrested a week later.  When arrested you had your shotgun with you, loaded.  You also had a large amount of ammunition.  Also with you were significant amounts of methylamphetamine, other drugs, cash and the common equipment of drug traffickers.

5During your police interview, you confessed to the drive-by shooting, possession of the gun and the ammunition and to trafficking in drugs.  You have maintained that approach and pleaded guilty today to the following charges.  Two charges of conduct endangering life.  Four persons were named as having their life endangered.

6One charge of being a prohibited person in possession of a firearm.  Being the possession you had of the firearm on the day of your arrest.  One charge of trafficking in a drug of dependence, being the methylamphetamines and two charges of possession of drug of dependence.  There were two summary charges of possession of the ammunition and dealing with the proceeds of crime being the product of your trafficking.

7The drive-by shooting was a particularly serious example of the crime of conduct endangering life.  You knew there were people in the house and you particularly sought to intimidate the male victim that I have spoken of.  You knew the ammunition you chose would highly likely cause death if someone was hit.  The fact you returned within an hour to repeat your frightening conduct reveals your entrenched criminal ways of thinking and acting.  You should have reconsidered what you had done earlier and stopped but you did not.

8You became even angrier and decided to repeat the brazen and dangerous shooting in a suburban street at a time in the morning as everyone would have been starting their day, children heading to school, others heading to work or other tasks.  Your moral culpability is very high.  I emphasise there is no evidence at all that there were children or others in the vicinity but rather I make the point this was in an ordinary suburban street at the beginning of the day.

9Your threats before each shooting add to my view of your moral culpability and to the seriousness of the offences.  You were intent on causing as much fear as you could.  When you were arrested you had your shotgun, this is despite you being a prohibited person.  You had a significant amount of ammunition at your disposal.  Well this again reveals your entrenched criminality and your attachment to lethal weapons.

10The drug trafficking involving the dangerous drug ice is also serious offending.  The amounts you were found with were not insignificant.  It is clear on your admissions you were a supplier to users of this drug.  Your motivation was to fund your own raging addiction to ice.

11As to your personal circumstances, you are now 23, being 22 at the time of the offending.  Accordingly you are a young man, a matter I have not forgotten in fixing your sentence; however, you have in that time developed a debilitating addiction to drugs and a concerning criminal history.  As your counsel emphasised, those two matters are very much interlinked.

12You were born in Wodonga but moved around in your childhood.  This meant that you did not have a solid education, attending many schools.  Notwithstanding that you did achieve a year 11 level of education.  Thereafter you worked in a local abattoir for almost a year and then different labouring jobs and working at KFC.  You consider yourself a good worker.  Again your counsel emphasised that you have the intelligence and the capacity to become a working man if you free yourself from drugs.

13There are other matters that you reported to the medico-legal psychologist,
Ms Lechner, whose report I read and what you reported to her together with the offending and your record of interview make it plain that you have problems with your anger.  You find it hard to contain anger.  You are easily frustrated.  This will make your reform a difficult path.  It makes protection in the community an important sentencing purpose.

14You were in your teens often before the Children's Court in Wodonga or Wagga Wagga.  Your prior offending in the Children's Court is troubling but I do not overemphasise these matters.  I note that you did receive a significant custodial penalty at the age of 19 for offending that had at its source some grievance held by a friend towards another person.  You were 17 at the time of the offence that you participated in.  Given this matter, that is a matter of some concern but again I do not overemphasise matters in the Children's Court.

15You have a criminal history before the Magistrates' Court including matters dealt with after your commission of these offences.  These matters together with the offending I have before me makes your prospects of rehabilitation guarded.  In the end it is up to you.  In particular, to spend your time in prison, which is inevitable, off drugs and on your release, do not take them up again Mr Vankerkoerle or mix with other users or other criminals.  Now that is not easy but you do have a lot of years ahead of you.  They will be wasted with further sentences of imprisonment if you do not deal with your underlying drug and anger problems.

16As I mention a number of times, real concern is your drug problem.  You commenced smoking cannabis in your early teens.  By your mid-teens you were using ice.  This scourge of a drug, ice, along with the prescription drug Xanax became your drugs of choice.  You say you were affected by those drugs at the time of your offending.  This is no excuse rather it reveals that you involve yourself in very dangerous behaviour when drug-affected.

17The further point of concern is that your drug addiction is entrenched thus you will remain a danger while you use drugs.  Ms Lechner considered you suffer from post-traumatic stress disorder due to your experience at the age of 15 of witnessing the stabbing death of a friend.  This experience is well likely to have left you with psychological scars.  It is not said that this has any direct relevance, causal connection, to your offending but rather it explains the full array of your personal circumstances.

18As well as requiring assistance with drug addiction, you would be wise to take up psychological help with this trauma.  I add to this your report of abuse if I can put it that way as a child.  You have responded with anger.  You need to take up counselling for that as well.

19Ms Lechner administered the self-reporting Beck's depression and anxiety inventory.  In both areas you are considered to have a moderate problem.  These matters do not lead to any particular mitigating relief.  Your counsel submitted that because of these matters you may do prison harder.  However, as the Court of Appeal has made clear in the DPP v Meyers, depression of the sorts that Ms Lechner reported was not a matter that would mitigate.

20The post-traumatic stress disorder is another matter.  I have to some small degree moderated your penalty because your post-traumatic stress disorder will make prison harder.  That said you have taken up opportunities on remand in prison and done educative and vocational programs.  That is, you have done a drug course, traffic management and welding.  All of this is to your credit.

21Of significance in mitigating your penalty is your very early plea of guilty.  This means that the sentence I will impose will be less than it otherwise would have been.  The plea and your complete confession give indication of remorse.  These are matters I have factored into the mitigatory matrix.

22You have been in custody for a significant period of time, although there is only 71 days that can be taken into account as pre-sentence detention.  Nonetheless I have considered in the overall picture that you have spent each day since 8 September 2017 in custody, albeit, undergoing some sentences but as discussed with your counsel, the declarations of pre-sentence detention and the sentences imposed did not work smoothly.

23The principal sentencing considerations for me are denunciation of your outrageous offending, shooting at an occupied house in the morning, not once but twice.  The community is heartily sick of criminals with petty grievances using firearms in our suburban streets.  My denunciation of your crimes must be more than my words.  There must be a sense that the practical punishment reflects the community's abhorrence.

24Your crime was a grave one involving serious risk of death or deaths.  Your drug trafficking also must be denounced and condemned.  As mentioned earlier ice is a scourge and you were peddling that substance so as to fund your own drug-using lifestyle.  Your own example reveals just how dangerous that drug is.

25Also of importance in sentencing you is the need to send a message of deterrence to you and to others who may use guns for any criminal purpose.  The message is simply this:  you will be sent to prison for years for that type of offending.  I have not overlooked your rehabilitation especially given your age but given the seriousness of your crimes and your past offending, your rehabilitation must yield to other sentencing purposes.

26So while I am mindful of the principles enunciated in the earlier cases of Mills and Azzopardi, it must also be stated that because of the seriousness of these gun crimes and drug offences and because you are far from a first-time offender, the moderation of general deterrence and punishment is not as prominent.  I make clear that the crimes of being a prohibited person in possession of a firearm and your possession of ammunition and drug trafficking also require that the same sentencing purposes that I have mentioned are to the fore in respect of those matters.

27Your two drive-by shootings on 1 September cannot be punished by sentences that are completely concurrent but I have ensured that the principles of totality have been applied together with a recognition that this was offending that arose on the one day because of your misguided sense of anger.

28As to the other crimes, I have applied the principles of totality to ensure that with measure of accumulation your overall sentence is met with a proportionate sentence, no more and no less.  Can you please stand Mr Vankerkoerle.

29For the first charge of conduct endangering life you are sentenced to three years' imprisonment.  For the second charge of conduct endangering life, you are sentenced to three years and three months' imprisonment.  For committing the offence of being a prohibited person in possession of a firearm, you are sentenced to two years' imprisonment.  For committing the crime of trafficking in a drug of dependence, being methylamphetamine, you are sentenced to 18 months' imprisonment.

30On each of the two charges of possession of a drug of dependence, you are sentenced to seven days' imprisonment.  For the summary offence of possession of the ammunition, you are convicted and fined $400.  For the summary offence of the possession of dealing with the proceeds of crime, you are sentenced to seven days' imprisonment.  I order that nine months of charge 1 and six months of charge 3 and six months of charge 4 be cumulative upon each other and upon the base sentence, Charge 2.  That gives a total effective sentence of five years and I fix a minimum non-parole period of two years and nine months before you are eligible for parole.

31You have already served 71 days in custody that I can declare as part of this sentence.  So that figure - well those numbers of days being reckoned I do declare that 71 days of the sentence I have just imposed has been served by you and I will ensure that this declaration is entered into the records of the court so that the authorities are left in no doubt you have done 71 days.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of seven years and three months with a minimum term of five years.

32There are other orders that are sought and I intend to make those orders.  They are the disposal that relates to various items that you had and clothing and drugs and scales and other paraphernalia.  There will be a forfeiture of the gun and the ammunition pursuant to the provision of the Firearms Act and a forfeiture order in respect of the cash that you had on you at the time.  I will sign those orders.

33Is there anything further required and does the mathematics add up?

34MR GOODENOUGH:  Nothing Your Honour that's ‑ ‑ ‑

35HIS HONOUR:  I thank counsel for their considerable assistance in this regard at short notice of course on circuit.  Mr Goodfellow.

36MR GOODFELLOW:  Thank you, Your Honour.

37HIS HONOUR:  Mr Vankerkoerle you'll be taken down.  Mr Goodfellow may have opportunity to see you downstairs shortly, so Mr Vankerkoerle can be removed.  I'll see you tomorrow Mr Goodfellow, (indistinct words).

38MR GOODFELLOW:  Yes, Your Honour.  That's right.

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