DPP v McAllister
[2007] VSC 536
•14 December 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1520 of 2006
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRIAN DAVID McALLISTER |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 - 14, 18 - 20 June, 5 November 2007 | |
DATE OF SENTENCE: | 14 December 2007 | |
CASE MAY BE CITED AS: | DPP v McAllister | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 536 | |
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Criminal Law – Sentencing – Intentionally causing serious injury, recklessly causing injury, firearm and drug offences – carrying a loaded pistol – shooting the pistol – effective sentence of 8 years and 3 months – non-parole period of 6 years and 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Gilligan | Office of Public Prosecutions |
| For the Accused | Mr J. Desmond | Matthew White & Associates |
HIS HONOUR:
Brian McAllister, you are to be sentenced as to six offences arising out of events which occurred on 29 December 2005. You have been found guilty by a jury of three offences. One of the three was intentionally causing serious injury to Timothy Birks. The other two were of recklessly causing injury to each of Timothy Birks and Andrew Hyde. You have pleaded guilty to another three offences. The first and second of the second three offences were of, whilst being a prohibited person, possessing an unregistered firearm. The firearms were pistols, one a Heckler and Koch, the other a Browning. The third of the second three offences, and the sixth overall, was of possession of cocaine.
In December 2005, you were staying with a friend at a house in Coburg. You decided to drive to St Kilda in a borrowed car. You took two pistols with you in the car. One was loaded, the other was not. You were later to tell the police that your intention in going to St Kilda was possibly to get syringes or drugs, and that the pistols belonged to a friend whose identity you would not disclose. You parked the car in a car park not far from Fitzroy Street. When you left the car, you took with you the loaded pistol. You went walking.
Shortly after 2 a.m. on Thursday 29 December, you were walking east in Jackson Street, St Kilda. As you walked along, you acted in a way which was likely to encourage suspicion. From time to time you went up to, and paused at, the doors of cars that were parked next to the kerb in Jackson Street. You told the police that you did so because you were looking for the car in which you had driven to St Kilda. That seems implausible given that you had parked not by the kerb, but in a car park. In any event, your actions were such as were likely to cause suspicion of your engaging in criminal activity, and they did cause that suspicion. That was because, as you walked along and paused at a number of cars, two men were also walking along Jackson Street in the same direction as you. One was Timothy Birks, the other was Andrew Hyde.
After being seen to go to other cars, you went to a car that Andrew Hyde had good reason to believe was not yours. He challenged you. You said you were looking for your girl-friend’s car. That led to Timothy Birks telling you to get out of the area. You told him to leave you alone. There was a further exchange of hostile words. You could have chosen to move on. The two men were not planning to follow you. They had arrived at the house into which they planned to go. You chose not to move on. Instead, you chose to take out the loaded pistol. You discharged the pistol close to the head of Timothy Birks. The discharge of the gun caused him a minor injury to his ear. With the shock of the close discharge, Timothy Birks went to the ground, although quickly got to his feet again. You ran away from the two men. You ran from Jackson Street into a car park. It was the car park where you had left the car in which you had driven to St Kilda.
Mistakenly, Timothy Birks and Andrew Hyde did not think that it was a real gun that you had discharged. They thought it was probably a starter’s pistol. They chose to proceed after you. They moved up to and into the car park. They had in mind to confront you to find out why you had acted as you did. Timothy Birks went to the back of the car in which you were seated. He took out his mobile phone. His intention was to take a note of the registration number of the car in order to report it to the police. You got out of the car. You told Timothy Birks to put the phone down. Andrew Hyde then came up to you. He pushed you with both hands. You went backwards, but did not fall. You then took out the loaded pistol again. You discharged the gun at Andrew Hyde. The bullet struck him to the leg. That second shot caused only a minor injury. Andrew Hyde did not go to the ground. The first and second shots gave rise to the offences of recklessly causing injury
Timothy Birks then came closer to you. You pointed the pistol at his stomach area. You fired the pistol. That third shot caused Timothy Birks really serious life-threatening injuries. It gave rise to the offence of intentionally causing serious injury.
When you were arrested later that morning, you were generally co-operative with the police. There was found in your clothes some powder in silver-foil. The powder was later analysed and found to be cocaine, as you told the police it would be.
The injuries suffered by Timothy Birks have had, and regrettably will continue to have, particularly nasty long–term consequences. I have read the victim impact statements prepared by each of Timothy Birks and Andrew Hyde. The adverse effects, physical and psychological, on both men have been bad. For Timothy Birks, they have been, are, and will remain particularly bad, even though he remains commendably philosophical. You should ask to be given a copy of the statement of Timothy Birks so that it will serve as a continuing reminder to you of the seriously bad choices made by you to use illegal drugs, to equip yourself with a loaded pistol and to shoot it without justification.
You are now aged 28. You were born in February 1979 in Scotland. You have an older brother. You came to Australia at the age of four. Both parents came from a professional background. Your conduct at school led to you being expelled. Once you entered your teenage years, you chose to drink alcohol to excess, and then to engage in the use of cannabis, then various other kinds of illegal drugs. Your parents had to ask you to leave home. Further details of your background, medical and drug and prison and psychiatric history are contained in the report of Dr Sullivan who saw you last September. He diagnosed you as suffering from poly-substance abuse complicated by recurrent drug-induced psychotic episodes. He says that you need intensive drug counselling. The prognosis is not good unless you can abstain from drugs absolutely.
You have major prior convictions. You have over 90 convictions, including for drug offences and offences of violence. The convictions were imposed in appearances in the Magistrates’ courts on more than 15 occasions between 1996 and 2004. Periods of imprisonment were imposed on nine occasions. When the offences for which you are now to be sentenced occurred, you were on parole. The parole was cancelled on 2 March 2006. The cancellation and other sentences imposed in 2006 affect the period of pre-sentence detention. The number of days as at today is 378. I direct that that be entered in the court records.
The offences for which you are now to be sentenced are serious, particularly the offence of intentionally causing serious injury. While I do not accept that the penalty that I impose for that offence should be near the top, nor should it be near the bottom of the range. Your actions merit the strongest denunciation. Your moral culpability is high. Your drug-taking may help to explain, but not to excuse, your conduct. General deterrence and special deterrence require a heavy penalty. You chose to walk around the street drug-affected and carrying a loaded pistol. I accept that you were provoked to some extent before you fired each shot. But you made the choices to act in the way that set off the limited provocation.
I do accept that there are some mitigating considerations that I must take into account in your favour. You have shown remorse for your actions and in more than one way. Unquestionably the biggest factor operating in your favour is the presence in your life of Melinda Wood, a drug and alcohol counsellor. She is the mother of Zoe, with whom you were in a relationship that resulted in the birth to the two of you of a son, Jude. But for Melinda Wood, I would have assessed your prospects of rehabilitation as poor, at best. So long as you work with her and for the benefit of Jude, your prospects of rehabilitation can be assessed as good.
I have signed the orders as to disposal and forfeiture, there being good cause for, and no opposition to, my doing so. I have reviewed the series of recent appellate decisions as to periods of imprisonment appropriate in circumstance of this kind. On the count of intentionally causing serious injury to Timothy Birks, which I will call Count 1, I impose a sentence of six years imprisonment. As to the other counts, a level of concurrency is appropriate although the individual counts reflect distinct offending acts. I will express the period in terms of the accumulation on the six years imposed on Count 1. On the count of recklessly causing injury to Timothy Birks, I impose a sentence of one years imprisonment, cumulative as to 6 months. On the count of recklessly causing injury to Andrew Hyde, I impose a sentence of one years imprisonment, cumulative as to 6 months. On the first count of the possession of a pistol, the loaded Heckler and Koch pistol, I impose a sentence of two years imprisonment, cumulative as to 1 year. On the second count of the possession of a pistol, the unloaded Browning pistol, I impose a sentence of six months imprisonment, cumulative as to 2 months. On the count of possession of cocaine, I impose a sentence of two months imprisonment, cumulative as to 1 month. The total effective sentence is 8 years and 3 months. I set a non-parole period of 6 years and 3 months.
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