DPP v Defrutos

[2006] VSC 474

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1483 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

MANUAL DEFRUTOS

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27-30 November, 4 December 2006
DATE OF SENTENCE:	11 December 2006
CASE MAY BE CITED AS:	DPP v Defrutos
MEDIUM NEUTRAL CITATION:	[2006] VSC 474

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Criminal Law – Sentencing – Attempted murder – Ambush and shooting in a suburban park at night – Imprisonment for 11 years – Non-parole period of 8 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr J. Hannebery	Victoria Legal Aid

HIS HONOUR:

1. Manual Defrutos, you have been found guilty by a jury of the attempted murder of Anthony McCallum on 23 July 2004.  On that night, you shot Anthony McCallum in the chest.  The shooting took place in a park immediately south of the Flying Duck Hotel in Prahran.

1. Your links to Anthony McCallum go back a couple of decades.  You and he played together in the same football team in the 1980’s.  Early in the year 2000, it was drinking at the Flying Duck Hotel that brought you together again.  Anthony McCallum lived nearby.  He was then in a relationship with a Caroline Mildenhall.  He and she drank there regularly.  Early in 2000, you started to drink at the hotel.  That led to your renewing your acquaintanceship with Anthony McCallum.  That led to your becoming an acquaintance of Caroline Mildenhall. 

1. Later in the year 2000, Anthony McCallum spent some weeks in London.  While he was away, you got to know Caroline Mildenhall better.  That led to your commencing a short-term affair with her.  When he returned from London, Anthony McCallum learned of the affair.  He was upset, but continued in the relationship with Caroline Mildenhall.  Anthony McCallum made it clear to you that he wanted no more to do with you.  You resented the outcome.  Every so often during the next three years, you chose to display your resentment towards Anthony McCallum, and your continuing interest in Caroline Mildenhall.  You insisted on a payment of $2,000 from Anthony McCallum for a trifling service which you rendered to him.  On two occasions, both chance encounters, you assaulted Anthony McCallum.  On St Valentine’s Day in 2003, you sent to Caroline Mildenhall a letter.  The letter spoke fondly of her, but critically of Anthony McCallum. 

1. As at July 2004, you knew where Anthony McCallum lived.  You knew that he frequented the Flying Duck Hotel.  The park next to the hotel was one which he was accustomed to walk through at night from time to time.  On the night of 23 July 2004, you were waiting for Anthony McCallum in that park.  As he moved through it on his way home, you approached him.  You had with you a handgun.  You were wearing the type of clothes such that it was only possible for him to identify you when you had come up close to him.  He recognised that you were the person who had approached him only as you were raising the gun.  He turned quickly as you fired the first time.  He was shot in the chest at about the level of his heart.  Fortunately for him and for you, because he turned quickly, the bullet took an entry and exit path across the front of his right ribs.  He ran off.  As he was running, you fired a second shot.  It missed him altogether.

1. I have read the victim impact statement prepared by Anthony McCallum.  He seems to have coped with the near-death experience more phlegmatically than most people could have been expected to.  Nevertheless, the statement shows that the psychological effects of being shot by you have caused continuing problems for him.

1. You have chosen not to have matters addressed to me as to the detail of matters personal to you or otherwise on the plea.  I know little more than that you are 49 years of age, that your parents and a brother are still alive, and that you have worked as a soft tissue therapist.  You have 25 prior convictions, from five Magistrates’ Court appearances between 1981 and 1995.  They were mainly drugs and deception offence convictions.  None was for an offence of violence.  As to heroin offences, you received a suspended prison sentence.  As to the other offences, fines were imposed. 

1. This attempted murder was a serious instance of a serious crime.  There is a need for denunciation, general deterrence, special deterrence and rehabilitation to be appropriately allowed for in imposing the sentence.  I have reviewed many recent sentences imposed for attempted murder.  Because the adverse consequences of your actions were not nearly as serious as in many other cases, your crime falls to be assessed close to the middle of the range.  Given the necessary element of an intention to kill, the premeditated character of the ambushing, the use of a gun, and the absence of any indication of remorse, your crime still calls for a long prison sentence.

1. I have signed the order as to the taking of a forensic sample which was sought but not consented to.  I am satisfied that in all the circumstances the making of the order is justified having regard to the seriousness of the circumstances of the offending.  I am required to inform you that a member of the police force may use reasonable force to enable the forensic procedure to be conducted.

1. I declare 12 days of pre-sentence detention and direct that that be entered in the records.  I sentence you to 11 years imprisonment.  I fix a non-parole period of 8 years.