R v Attard

[2002] VSC 381

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1507 of 2001

THE QUEEN

v

DAVID ANTHONY ATTARD

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 - 24, 27 June 2002, 6 August 2002
DATE OF SENTENCE:	12 September 2002
CASE MAY BE CITED AS:	R v David Anthony Attard
MEDIUM NEUTRAL CITATION:	[2002] VSC 381

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Criminal Law – Sentencing – Murder – Shooting of supplier of heroin  - Unplanned over-reaction – 18 years imprisonment – 13 years non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson with Mr D Hallowes	Office of Public Prosecutions
For the Accused	Ms E Gaynor	Jones & Dowling

HIS HONOUR:

1. David Attard.  You have been found guilty by a jury of the murder of Quang Minh Vo at St Albans on 12 February 2001.  At that time, you were addicted to heroin.  The deceased was a drug dealer.  You bought your heroin from him.  In February 2001, you kept company with Sacha Oakley and Dennis Yannopoulos.  Like you, they were addicted to heroin.  They were with you on 12 February 2001.  They have pleaded guilty to manslaughter, arising out of the killing of the deceased.  I have already sentenced them.

1. You had bought drugs from the deceased some hundreds of times.  You often completed the purchase outside disused shops in Douglas Avenue, St Albans.  For a time late in the year 2000, you used to sell drugs for the deceased.  You knew he was married and had young children.

1. On 12 February 2001, you and your two addict friends were in need of heroin.  You went to a pawn shop in St Albans.  You pawned a set of car wheels.  You got $220, which was not quite enough money to pay for the half a gram of heroin you wanted to purchase.  You decided to make sure that you would get the half a gram anyway.  You went with Dennis Yannopoulos and got a handgun that he had purchased.  He showed you how it worked.  You knew it was loaded.  Your contingency plan was to produce the gun.

1. Around 12.30 p.m., you telephoned the deceased from your home.  You arranged to meet him at the Douglas Avenue shops to do a deal.  Sacha Oakley got her car.  You put on a waist bag in which  you had placed the loaded gun.  The three of you set out for the meeting place.  The other two positioned the car so that they could come by after the deal had been done.  You waited at the shops for the deceased.  He arrived riding a motorcycle.  I cannot make precise findings as to what happened then.  I am disposed to accept some but not all of what you later told the police.  I accept that you did not plan to kill the deceased.  I do not accept that you shot him in excessive self defence or that he provoked you.  You had the gun as part of a contingency plan.  You too readily fell back on that plan.  But then you over-reacted.  You not only produced the gun.  You fired it at the deceased.  You did so not just once but several times.  You then dropped the gun and picked up the deceased’s motorbike.  At that time, Dennis Yannopoulos and Sacha Oakley came by in her car.  You dropped the motorbike, picked up the gun, got into the car and were driven from the scene.

1. This was a serious example of the serious crime of murder.  General deterrence must play a major part in determining the sentence that I must impose.  Dealing in heroin is trouble enough, without adding a handgun.  Further, you opted not just to produce the gun in a residential street.  You went on to fire it several times at a defenceless victim.

1. The deceased, although a heroin dealer, was a loved and loving husband, father, son and brother.  His family members have suffered and will continue to suffer much pain and loss from his death.  The victim impact statements of those family members make for sad reading.

1. I turn to your background.  You were born in February 1977.  You are the youngest boy in a family of seven children.  You are the only one to have had trouble with the law.  You had a basic education.  You have had an employment record that is patchy, largely because of problems with illegal drugs.  That started with the use of cannabis from the age of fourteen.  By the age of 20, you had become addicted to heroin.  You had 4 appearances in court during 1997 and 1998, but those appearances did not lead to your being sentenced to serve any time in prison.  For some months in the year 2000, you managed to keep off the heroin, but then succumbed again.

1. I must weigh in your favour a number of mitigating factors.  The most important is your youth.  I accept that you have shown considerable remorse.  I accept that the remorse is heartfelt.  In prison, you have worked and done courses calculated to improve yourself.  You have a supportive mother and siblings.  The indications from the report of Dr Walton and otherwise are that the prospects of rehabilitation are good.

1. You have had 577 days of pre-sentence detention to today, 12 September 2002.  I direct that that be noted in the court records.  I sentence you to 18 years imprisonment.  I fix a non-parole period of 13 years.