DPP v Nelis
[2022] VSC 50
•28 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT GEELONG
CRIMINAL DIVISION
S ECR 2021 0150
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JOHN NELIS | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Geelong |
DATES OF HEARING: | 2 December 2021 and 31 January 2022 |
DATE OF SENTENCE: | 28 February 2022 |
CASE MAY BE CITED AS: | DPP v Nelis |
MEDIUM NEUTRAL CITATION: | [2022] VSC 50 |
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CRIMINAL LAW — Sentence — Manslaughter — Negligence — Discharge of shotgun — Unaware firearm was loaded — Offending occurred in the context of drug use — Evidence of remorse notwithstanding post-offence flight — Relevant criminal history — Guarded prospects of rehabilitation — Difficult custodial conditions — Custody likely to be more burdensome due to PTSD — Utilitarian value of plea during pandemic — Sentence of 11 years’ imprisonment, with non-parole period of eight years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Kristie Churchill with Ms Susanna Locke | Office of Public Prosecutions |
| For the Accused | Mr Dermot Dann QC with Ms Sarah Lenthall | Emma Turnbull Lawyers |
HIS HONOUR:
John Nelis, you have pleaded guilty to one count of manslaughter arising from the shooting death of Christopher Jacobs at Corio on 4 July 2020. Your plea to the charge of manslaughter is on the basis of criminal negligence. Although you fired the fatal shot, you did so not realising the gun was loaded.
On 2 December 2021 and 31 January 2022, I heard the prosecution opening, received victim impact statements into evidence and heard submissions from your counsel and counsel for the prosecution as to the sentence that should be imposed on you. The maximum penalty for manslaughter is 25 years’ imprisonment. It is now my responsibility to sentence you for this offence.
Circumstances of the offending
In July 2020, Mr Jacobs, who was also known as ‘Legsy’, was living in a caravan in the backyard of 17 Chaffey Square, Corio. Melanie Menzies, Kayla Collins and Joshua Hocking also lived at that address in the home at the front of the property.
In the early hours of 4 July 2020, you were at the Wandana Heights home of two associates, Sherona Zanoni and Zak Warren. Zanoni called her friend Avril Ludlow, who attended the Wandana Heights address to pick you up sometime after 1:00 am. Before you and Ludlow left, you, Ludlow, Zanoni and Warren all had what is described as a “plunge” or dose of gamma hydroxybutyrate (‘GHB’).
At approximately 2:40am on 4 July 2020, Shirelle Kennan picked Mr Jacobs up from his girlfriend, Emma Bell's, house. They then picked up Cassandra Stegmann and went to Mr Jacobs' caravan. Kennan left shortly after, at about 4:10am, and Stegmann remained with Mr Jacobs in the caravan.
At around this time, Ludlow drove you to the Chaffey Square property to see Mr Jacobs. You had known Mr Jacobs for a number of years and the two of you were close. Ludlow thought you were going to have a ‘plunge’ with Jacobs. You were in possession of a bag which contained a double-barrelled shotgun. Ludlow said she could not be sure, but she had the impression that you were wanting to swap or sell the firearm with Mr Jacobs. From what Ludlow had perceived, you had no intention of hurting Mr Jacobs during the visit. When you and Ludlow arrived, Ludlow stayed in the car while you went into the caravan and saw Mr Jacobs and Stegmann. You gave Mr Jacobs some cash and said, ‘I've got to go, but I’ll be back. I've got a chick in the car.’ Joe Jackson arrived in a taxi around that time, and you returned to Ludlow’s car.
When Jackson entered the caravan, he lifted his top to show Mr Jacobs that he was wearing what he thought was a bullet-proof vest. Mr Jacobs then tried on the vest. The vest was not fitted with any ballistics panelling. A short time later, you returned to the caravan with Ludlow. You put your bag containing the shotgun down on a bench. Ludlow was standing just inside the door. Mr Jacobs greeted Ludlow and asked how she was going. Ludlow recognised Stegmann, whom she had known for about a year. Everyone was in good spirits. Not long after you re-entered the caravan, you said to Mr Jacobs, ‘What’s that, a bullet proof vest?’ You turned from the bench where you had made some sort of metal sound. You were holding the shotgun in your hands. You were holding the gun grip in your right hand and had your left hand on the barrel. You then fired the gun. You are to be sentenced on the basis that you pulled the trigger deliberately, believing the gun not to be loaded. Clearly, you did not check whether it was. You are not to be sentenced on the basis that you were, in some way, testing out the bullet proof vest that Mr Jacobs was wearing.
Stegmann saw Mr Jacobs fall to the floor holding his stomach. Mr Jacobs asked, ‘How bad is it?’ Stegmann saw you holding the smoking gun. You were holding it on your right side, and it was pointing at Mr Jacobs.
Stegmann recalled that you said, ‘I didn't know it was full.’ Jackson recalled you saying, ‘It wasn’t meant to be loaded.’ You then went over to Mr Jacobs and said, ‘Are you all right, bro?’ You told Ludlow to, ‘Get the fuck out the door.’ Ludlow said to you something like, ‘Oh my God, Johnny.’ You told her not to say your name, and the two of you left the caravan.
From here on, your primary concern seemed to be for yourself despite the fact that Mr Jacobs has sustained what proved to be fatal injuries and the seriousness of them must have been obvious to you. Jackson fled the address. Stegmann called an ambulance, attempted first aid, and waited with Jacobs until police arrived. You went to the house at 17 Chaffey Square and started banging on the front door. When Collins opened the door you demanded the CCTV system. Collins said there was no system, so you and Ludlow left the property. You instructed Ludlow to turn her phone off. Ludlow drove you to a house in Bell Post Hill. You were at the address for a few minutes, and when you got out of the car you took the gun with you. When you returned, you no longer had the gun. Ludlow drove you to see your mother in Lovely Banks, and then to see your daughter. You told your mother and your daughter that you had accidentally shot Mr Jacobs, and that you wanted to kill yourself.
You and Ludlow then went back to Zanoni and Warren's house, arriving at around 6:00am. At one point you took Zanoni aside and spoke to her out of earshot. Ludlow mouthed to Warren that you ‘just shot Legsy’. You and Ludlow were with Zanoni and Warren for a few hours, during which time you consumed a lot of GHB, which was of no assistance to you or anyone else. You and Ludlow then left and went to an address in Norlane, where you purchased three points of heroin. While you were there someone turned on the TV, and you saw on the news that Mr Jacobs had died. You told Ludlow it was best for her to go with you and see your dad near Ararat. You wanted to speak to a lawyer about what had happened. You and Ludlow hid her car and borrowed a ute from someone in your family. You and Ludlow then visited your father and stayed overnight, before returning to the Geelong area.
Stegmann provided a statement to police on 4 July 2020. At around 10:00am on that date the informant, Detective Leading Senior Constable Kevin Squires, obtained CCTV from an address on Chaffey Square. The informant identified two vehicles of interest attending 17 Chaffey Square between midnight and 6:00am, including the silver 2003 Mitsubishi Lancer belonging to Ludlow.
On 11 July 2020 the informant established that you and Ludlow had stayed at Quality Suites Point Cook overnight on Tuesday 7 July 2020. Jackson was arrested and interviewed in relation to Jacobs’ death on 14 July 2020, and at the conclusion of the interview Jackson provided a witness statement. Prisoner telephone calls between Ludlow and her boyfriend Christopher Chambers were reviewed by police on 16 July 2020, and the contents of those calls indicated that Ludlow had knowledge of and involvement in Mr Jacobs’ death.
On 24 July 2020, Ludlow was arrested and taken to Geelong police station to be interviewed by police in relation to Mr Jacobs’ death. En route she directed police to the address in Bell Post Hill, where she believed that you had disposed of the firearm; however, the firearm was not able to be located.
At the conclusion of the interview Ludlow agreed to provide a statement. At approximately 10:10pm on 24 July 2020, the informant was notified that you had been arrested after presenting at the Geelong police station. You were charged with murder and remanded in custody.
Procedural history
You offered to plead to unlawful and dangerous act manslaughter on 4 December 2020 and to negligent manslaughter on 28 May 2021 and 7 September 2021. These offers to resolve the matter were not accepted by the prosecution. You were committed to stand trial on 11 June 2021 in accordance with the Supreme Court’s fast-track procedure.
Preparatory cross-examination of prosecution witnesses pursuant to s 198B of the Criminal Procedure Act 2009 (Vic) took place over three days in September 2021. The matter resolved to a plea of guilty to negligent manslaughter on 13 October 2021 and you were arraigned that day and pleaded guilty.
Victim impact statements
During the plea hearing the Court received four Victim Impact Statements from:
(a) Nick Jacobs – father of Mr Jacobs;
(b) Christine Jacobs – mother of Mr Jacobs;
(c) Matt Jacobs – brother of Mr Jacobs;
(d) Hilary Jacobs – stepmother of Mr Jacobs.
The statements of Nick and Hilary Jacobs were read to the Court by Ms Locke of counsel, and I have read the other two in chambers.
To lose a close family member or friend in these circumstances is as tragic as it appears. Their emotions are heightened by the fact this was all so unnecessary. Your actions have caused a devastating impact on those closest to Mr Jacobs. This impact will be with these people for the rest of their lives. It is important that they have been heard. I have taken their statements into account in determining the sentence that I shall impose on you.
Personal circumstances and criminal history
You were born in Geelong and are now 38 years of age. Your parents separated when you were six years old. Your father experienced issues with alcohol and he served some time in prison. He now lives in Horsham. Your mother is still in Geelong having re-partnered. You have a brother and several half siblings from your parents’ other relationships.
Your childhood was affected by violence and instability. As a teenager you lived in Geelong and Perth. You were in the latter city because of your mother’s new relationship. You suffered at the hands of both your mother’s partner and an uncle while you were there. You returned to Victoria after spending six months in Perth. Your education finished after year 11, having been intermittent for several years. I pause to note that this is a typical scenario. It is the case that a very large number of troubled individuals who find themselves in the criminal justice system have an incomplete and unsatisfactory education. Those who are vocal about reducing criminal activity should pay careful attention to education as a means of diverting young people away from being tempted to commit criminal offences, particularly when a drug habit has become entrenched in their lives.
You have a work history as a forklift driver and rigger.
You had a daughter with a former partner when you were 19 years old. She is now 18 years old and currently lives with your mother. You enjoy a close relationship with her. She, along with other members of your family, attended your plea hearing in support of you.
As in so many similar cases, you have a substance abuse history of some significance. You began using alcohol when you were 13 years old and drank throughout your teenage years. You began using drugs of dependence in your early 20s, including dexamphetamine, amphetamine and methylamphetamine as well as ecstasy, MDMA, GHB, cocaine and Xanax. You developed an addiction to methylamphetamine, which you were using regularly in the period leading up to the offending. As I have already outlined, on the night of the offending you used GHB and were also drinking vodka.
Your criminal history began in 2001 with burglary and theft offences. On 4 April 2006 you were convicted of firearms charges and making threats to kill. Those matters related to a person who became involved with your partner. Mr Dann QC, who appeared with Ms Sarah Lenthall of counsel, submitted on your behalf that you went around to a house to try and find that person with a real firearm. The person wasn’t there but you discharged the firearm into the air on that occasion, giving rise to the use firearm in a dangerous manner charge. You were placed on a bond for that particular charge and a suspended sentence for the related matters.
As to the conviction on 26 October 2011 for the charge of recklessly causing injury, your counsel submitted there was a fight involving yourself and the aforementioned person who had become involved with your partner. There was a lasting animosity between the two of you. You claim that a bottle was thrown at your car, and you got out and a fight followed. You were fined for this conduct.
On 9 May 2012, you were in a car with your cousin and went into a carwash bay at Corio. You and your cousin got out of the vehicle, and you went into the back of the car, pulled out what looked like a firearm but was a toy gun and pointed it at your cousin. That conduct was captured on security footage. On 18 May 2012 you were at the Geelong Police Station for an interview in respect to another matter and while there the police searched your vehicle, finding the toy gun. A knuckle duster, knife, other knives, cash and mobile phones were detected in the car, and you were charged in relation to those. A later search at your home revealed drugs of dependence and prescription medication, resulting in other charges.
On 25 October 2017 in this Court, you were dealt with for contempt and received a partially suspended sentence. This related to your refusal to answer questions to the Chief Examiner. Your failure to co-operate concerned your fear and imminent threats to you and your family members, but objectively that did not provide a reasonable excuse. It was accepted that an explicit threat had been made against a family member and that you were in genuine fear for your safety, and you were sentenced on the basis that you had a pre-existing mixed anxiety and mood disorder.
The point made by your counsel is that over the period of your criminal history you have not had the benefit of supervisory orders. You have been sentenced to either short periods of imprisonment or suspended sentences, aside from a Corrections Order in 2001 which you completed. It was argued that you would benefit from supervision and assistance by way of parole given the difficulties you have experienced with substance abuse.
Defence submissions
Mr Dann raised several matters by way of mitigation.
Circumstances of the offending
Mr Dann submitted that it is significant that there is no evidence of ill will between you and Mr Jacobs. On the contrary, the two of you were close friends and on good terms. The incident occurred in circumstances where you believed the gun was unloaded without having checked that was so. Mr Dann submitted that the offending falls toward the lower end of the scale for negligent manslaughter in the circumstances.
Conditions in custody
As to your time in custody so far, Mr Dann pointed to several heart episodes you suffered shortly after being incarcerated, which may have been severe anxiety attacks. These resulted in your admission to hospital. You have suffered significantly as a result of the pandemic and the lockdowns and quarantine arrangements that have been implemented to combat the virus.[1] You have only seen your mother and daughter once since going into custody, although you have maintained phone contact with them. According to information on the Corrections Victoria website, the virus is now in the prison system.[2]
[1]R v Madex [2020] VSC 145, [51] (Incerti J); R v Kelso [2020] NSWDC 157, [45] (Norrish QC DCJ).
[2]See < of guilty
You made several offers to plead guilty from 4 December 2020 to both manslaughter by unlawful and dangerous act and negligent manslaughter. Your offer to plead on the basis of negligent manslaughter was finally accepted on 13 October 2021. It was submitted that given your earlier offers to plead guilty, your plea should be regarded as being entered at a very early stage in proceedings. Mr Dann submitted that your plea provides some evidence of remorse and acceptance of responsibility. Mr Dann also appropriately relied on the utilitarian benefit of the plea avoiding, as it does, the need for a trial. Your plea was also said to indicate a willingness to facilitate the course of justice.[3] It was further submitted that your plea, entered at a time when the administration of justice continues to be hampered by the pandemic, ought to warrant a perceptible amelioration of sentence.[4]
[3]DPP v Thomas; Wu [2016] VSCA 237 (Redlich, Santamaria and McLeish JJA).
[4]Worboyes v The Queen [2021] VSCA 169, [39] (Priest, Kaye and T Forrest JJA).
Remorse
In addition to your willingness to plead guilty, it was submitted that your remorse is evidenced by your reaction immediately after the offending, notwithstanding your panic and flight. Witness statements outline your distress and talk of self-harm.
Mental Health
The hearing of the plea was interrupted so that a report could be obtained from Dr Leon Turnbull. That report dated 24 January 2022 was provided to the Court. Dr Turnbull did not give evidence. Dr Turnbull described you as tense and concerned about your fate. He reported that the cumulative effect of abusive events has led to a Complex Post Traumatic Stress Disorder (‘PTSD’) which has resulted in mild to moderate mood disturbances, flashbacks and nightmares and other difficulties.[5] He does not connect any psychiatric condition you suffer from with the offending. He accepts, as do I, that your PTSD will make the time you serve in custody, past and present, more difficult.
[5]Report of Dr Leon Turnbull dated 24 January 2022, p 6.
Dr Turnbull emphasised that your main problem over the years has been substance abuse, particularly methylamphetamine.[6] He regards that as a significant factor in you committing this offence. It is clear that Dr Turnbull regards dealing with your substance abuse issues as the key to you improving your life and rehabilitating. Unless you do, you will be likely to spend a lot more of your time in custody.
[6]Ibid.
Family support
Several references were filed with the Court on your behalf. One reference speaks of attempts that were made around the time of the offending to admit you to residential rehabilitation. It would appear that your family and friends are aware of your substance abuse issues and that they otherwise support you. Mr Dann submitted that this support is relevant to your prospects of rehabilitation.
Authorities
Mr Dann acknowledged the table of cases filed by the prosecution, to which he added the case of DPP v Yucel.[7] Mr Dann submitted that, whilst the authorities referred to can be of some limited assistance in fixing a broad range for sentence, each case must be considered on its own facts and circumstances.
[7][2019] VSCA 53 (Kaye, Niall and Weinberg JJA).
Prosecution submissions
Ms Churchill, who with Ms Locke appeared for the prosecution, made several submissions on behalf of the Director of Public Prosecutions.
General sentencing principles
Ms Churchill argued that general deterrence, just punishment and denunciation are the important sentencing considerations in this case. She also submitted that your history demonstrates that you have not been deterred by previous sentences for firearm related offending and that therefore specific deterrence is also important. Ms Churchill noted that your prospects of rehabilitation appear inextricably linked to your ability to abstain from illicit substances. It was submitted that the Court ought to have a guarded view of your prospects of rehabilitation given your age and criminal history.
Ms Churchill accepted that your offer to plead was made at an early stage in proceedings and that it occurred in circumstances where there were what she described as difficulties with the reliability and credibility of most of the civilian prosecution witnesses. She also accepted that your plea is indicative of remorse and that your time in custody has been burdensome.
Culpability and remorse
Ms Churchill queried the level of remorse you claim to have given the way you behaved after the shooting. It was submitted that whilst your behaviour and demeanour upon leaving the caravan evinces a degree of sorrow for your actions, your primary motivator at this time appears to be avoiding responsibility.
Objective gravity
The prosecution accepted that you held no ill will towards Mr Jacobs and that you did not intend to harm him in any way. It was however submitted that pointing a firearm at someone and pulling the trigger is an inherently serious act, especially in the context of drug use. The prosecution further submitted that your decision to flee, seek no assistance for Mr Jacobs as he was dying, dispose of the firearm and avoid police attention for 20 days indicates a degree of callousness. You were also not licensed to possess, carry or use a firearm and are in fact a prohibited person. Ms Churchill submitted that, in all the circumstances, the offending falls at least around the middle of the range for negligent manslaughter.
Maximum penalty
The prosecution noted that the maximum penalty for manslaughter was raised from 20 to 25 years’ imprisonment on 1 July 2020. It was submitted that this higher maximum penalty should have an upward effect for most manslaughter sentences.
Authorities
The prosecution filed a table of cases with similarities to the present matter. The cases of The Queen v Albert Rapovski and DPP v Torun were said to be the most comparable.[8] Ms Churchill noted the comments of Weinberg JA (as he then was) in R v Jagroop, where his Honour outlined the broad hierarchy of manslaughter by provocation, manslaughter by unlawful and dangerous act and manslaughter by criminal negligence before observing:[9]
[67]That is not to say that it is an inflexible rule that sentences for manslaughter by criminal negligence should be lower than those for other forms of manslaughter. Everything must turn upon the particular circumstances of the case.
[8][2016] VSC 706 (Croucher J); [2015] VSCA 15 (Ashley, Whelan and Beach JJA).
[9](2009) 22 VR 80, [62], [65] and [67] (Weinberg JA).
Analysis and conclusion
Only a few days before you committed this offence, Parliament increased the maximum penalty for manslaughter from 20 to 25 years imprisonment. As Ms Churchill noted, the purpose of that increase was to indicate that ‘…past sentences for the most serious offending of this nature have been inadequate.’
I sentence you on the basis that you deliberately pulled the trigger of the firearm having a belief that it was unloaded. You maintain that you cannot recall pulling the trigger but accept that you must have done so deliberately. There was no hostility between you and Mr Jacobs, and it was not in issue that you had no intention to harm him. You also did what you did having consumed drugs which may explain but in no way justifies your actions. The fact that you were handling a firearm whilst under the influence of the drugs aggravates your offending. Having fired the fatal shot and realising that Mr Jacobs was in real trouble you did nothing to assist him but rather, albeit in panic, tried to protect yourself. Your indifference to Mr Jacobs’ welfare and your dominant desire to protect yourself does you no credit.
Both counsel made submissions about where this case might fall in what was described as a range of offending. With respect, I have never found such submissions very helpful, and I do not propose to fix a place for your conduct in a range. Whilst current sentencing practices are a factor to be taken into account, manslaughter is an offence with a diversity of outcomes.
It is trite to say your offending is serious – of course it is; a life was lost as a result of your criminal negligence. Like so many similar cases, this death was not only tragic but totally avoidable. The mixture of drug consumption and firearms is obviously a lethal combination and anyone with a degree of common sense would realise that.
It is beyond me to find words that will have any effect on people who are inclined to use drugs of the kind you used. Drugs are ruining your life and will continue to do so unless you defeat the addiction. They have put you in the situation you are in now. They are no solution to the problems you have encountered in the past. It follows that your prospects of rehabilitation are almost completely dependent on your ability to defeat your addictive drug use. Your counsel relied on the support of your family as being relevant to your prospects, but I remain cautious about them.
Specific and general deterrence, denunciation and just punishment are all significant considerations in this case. On the other hand, I accept you are remorseful for what occurred. Your plea at an early stage in proceedings and your attitude since the offending demonstrates that. As is well established by the authorities, your plea is especially valuable while the courts continue to grapple with the effects of the pandemic, and I have taken that factor into account in sentencing you.
As I have said on many other occasions, this is a very bad time to be in custody. The seemingly endless pandemic affects the vulnerable most dramatically and because prisoners are without freedom and autonomy, they are dependent on the government for protection. That protection is usually rendered by further reducing liberties which may risk transmission of the virus. I accept that your PTSD makes these difficult circumstances especially burdensome for you.
In all the circumstances, the appropriate sentence for me to impose on you is one of 11 years’ imprisonment. I direct that you serve a period of eight years before you are eligible to apply for release on parole.
You have been remanded in custody since 24 July 2020 and have served 584 days of pre-sentence detention, not including the date of this sentencing hearing. Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that 584 days is reckoned as pre-sentence detention and direct that this be entered into the records of the Court.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), if you had conducted a trial and been found guilty of manslaughter by a jury then I would have imposed a sentence of 13 years’ imprisonment and fixed a period of 10 years before you would have become eligible to apply for release on parole.
Ancillary orders
I will make the disposal order sought by the prosecution.
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