R v Britt
[2006] VSC 378
•17 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1614 of 2005
| THE QUEEN |
| v |
| JAMES MICHAEL BRITT |
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JUDGE: | Kellam J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2006 | |
DATE OF SENTENCE: | 17 October 2006 | |
CASE MAY BE CITED AS: | R v Britt | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 378 | |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury by shooting – Causing injury – Pleas of guilty – Delay – Remorse – Good prospects of rehabilitation – Sentence of 8 years with a non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams SC | Solicitor to the Office of Public Prosecutions |
| For the Prisoner | Mr D. Sheales | Tony Hargreaves and Partners |
HIS HONOUR:
You, James Michael Britt, have pleaded guilty before me to one count of intentionally causing serious injury. The maximum penalty for this offence is 20 years’ imprisonment. You have pleaded guilty before me to one count of causing injury, the maximum penalty for which is ten years’ imprisonment. These crimes arise out of circumstances which took place at Darnum on the fifth and sixth days of May 2005.
The background to the events which occurred that day is that you had had a relationship with one Louise Self for a period of approximately four years leading up to November 2004. You and she separated in mid November of that year. It would appear that you, subsequent to November, harboured some hope that you and she would recommence your relationship. However, she told you in February of 2005 that there was no possibility, from her viewpoint, of there being a continuation of any relationship between you and her.
In March of 2005, Louise Self commenced a relationship with Steven Walsh. Steven Walsh had known you for approximately 13 or 14 years and over at least part of that period of time he had been a close friend of yours. Neither Louise Self nor Steven Walsh told you that they had commenced a relationship. However, it would appear that you became aware of that fact in early 2005. On 5 May 2005, at approximately 8.00 pm you attended at Steven Walsh’s house. Louise Self’s car was parked there. You got out of your vehicle and spoke to Steven Walsh in the area of his front yard. You said, “What’s Lou’s car doing here?” He answered, “I’ve started to see her”. A further discussion took place about the fact that he was seeing Louise, and had been doing so for about six weeks. In the course of this conversation you hit Steven Walsh on the nose, causing him to fall against a nearby shed and causing his nose to bleed. This event is the subject of the count of causing injury to which you have pleaded guilty.
Subsequent to that event, Louise Self came out of the house and a discussion took place after which she and Mr Walsh requested you to leave the premises. You did so. You then went around to the house of a friend, Kerry Beale. Whilst you were there, Steven Walsh attended at Beale’s premises. He asked you to, “Come outside” and “sort this out”. Heated words were exchanged between you and Mr Walsh after which he calmed down and left. In due course you returned to the place at which you were then living. You went to sleep. In the course of the early morning you woke up. You told police that you went to your gun cabinet where you took out a shotgun owned by you. You said that you “grabbed some rounds”. You told police that you did this because “I didn’t want to live any more”. You told police that it was your intention to shoot yourself. You said that you did not want to live any more and that your intention was to kill yourself “down the dirt road beside the train tracks at Darnum”. You then drove to the house occupied by Steven Walsh in Darnum. You said to the police, “I wanted them to know what – what effect it would – it has had on me”.
In the course of your journey to the house of Steven Walsh you sent Ms Self an SMS message via mobile telephone. It stated, “Lou, sorry Lou, this situation is too much for me. I really do love you. Goodbye”. That SMS was sent at 4.19 am on 6 May 2005. I accept that at the time that message was sent it was your intention to kill yourself in the vicinity of the home of Steven Walsh. However, it is also apparent that at some point thereafter you changed your mind. It is clear that Louise Self spent the night with Steven Walsh and that her car was parked in his driveway. You told police that you thought about going down “the dirt road” and “going in front of their house”. I understand these statements to refer to the place at which you had an intention to commit suicide. However, you also told police, “I was in front of the house when [a] car went past and then I thought ‘Well, I’ll go inside’. I went and walked across the front lawn and went to go inside, and then when I went there, the door was open, then before I knew it, I was standing at the door of the bedroom and I turned the light on … I had the gun there, but I wasn’t – I just wanted them to listen to me and understand that …”.
You entered the house of Steven Walsh with the shotgun. You went to the bedroom in which he and Louise Self were sleeping, turned on the light and then pointed the shotgun in the vicinity of Steven Walsh’s head and fired on two occasions. However, before you fired, Steven Walsh woke up. He said, “Don’t shoot”. He lifted his right arm in front of his face. You then fired not one but two cartridges at him. His arm took the brunt of the blast of the two shotgun cartridges that you discharged at him. The injury which he has suffered to his arm can only be described as horrendous, the flesh of his forearm being effectively removed from the bone. He suffered more minor injury to his face and chest in consequence of the penetration of those areas by other shotgun pellets. It is the totality of these injuries which are the subject of the count of intentionally causing serious injury to which you have pleaded guilty.
It should be observed that you were tried before me on a count of attempted murder. The jury found you not guilty of this charge. However, in the course of giving evidence before the jury, Mr Walsh gave evidence, and I was able to observe the serious injury which had been suffered by him. He was first taken, indeed by you, to the Warragul Hospital and then transferred to the Alfred Hospital. He was found to have multiple pellet wounds to his face, neck and chest, and extensive soft tissue and bone loss to his right forearm. He underwent multiple operations on 6 May 2005 and subsequently had four further operations during his first period of admission to the Alfred Hospital. He was not discharged home until 6 June 2005. He has attended the out-patient clinic on numerous follow-up occasions. In addition, it is apparent that he has yet to have further surgery which, hopefully, will give him the opportunity in the future to form a “pinch” between his right thumb and right forefinger.
He has filed a victim impact statement before me. That victim impact statement describes the serious physical injury suffered by him as well as the grave emotional trauma from which he has suffered. He said, “I have trouble sleeping at night, require sleeping tablets. Events of what happened are constantly on my mind with flashbacks and nightmares”. I have no difficulty in accepting that that is the consequence of your crime upon him. Mr Walsh is a fitter and turner by trade and he cannot return to that trade although fortunately he has remained in employment as a supervisor. He is now unable to ride his motorcycle, to hold a fishing rod or to engage in mechanical work. It is apparent that the effects of the injury you have caused him will last for the rest of his life and will be a lifetime reminder to him of your criminal conduct. The injury he has suffered is permanent and of great gravity.
Louise Self, who was present and observed the events of the early morning of 6 May 2005, has also filed a victim impact statement and she refers in that to her constantly waking up with flashbacks. She also refers to the emotional trauma suffered by her ten year old daughter, Emily who was present in the house on the night in question. I accept that you were particularly fond of Emily. In addition, each of the parents of your victim filed a victim impact statement, the admissible parts of which I have taken into account. It is apparent that in particular Steven Walsh and Louise Self have suffered and will continue into the future to suffer as a result of your actions.
This is a serious example of the crime of intentionally causing serious injury. There are, however, as has been pointed out by your counsel, a number of mitigating factors. First, you have pleaded guilty before the jury to the charges of intentionally causing serious injury and causing injury. You are entitled to have that fact taken into account in your favour and I do so. Furthermore, I take into account in your favour that you intimated early your intention to plead guilty to these charges. In this regard you have suffered delay in your sentencing because of your trial on the charge of which you were acquitted. That is a matter of some relevance which I take into account in your favour.
I am satisfied that you suffer from remorse. It should be noted that the circumstances in this case are that almost immediately after inflicting horrendous injury upon your victim you assisted him and took him to the Warragul Hospital. You readily admitted your part in the crime, telling both medical personnel at the hospital and police who interviewed you soon afterwards, of your responsibility for the injury suffered by your victim.
I have been told something of your personal history and your circumstances. You were born on 11 December 1973 and were accordingly 31 years of age at the time of the offence. You were born in Warragul and have lived in the Warragul area for most of your life. Your parents separated when you were approximately 14 years of age. You were educated at Marist College in Warragul until part way through Year 10. For the next nine years you worked with Coles, reaching a level of Assistant Manager. You then obtained employment as a concreter for 12 months but ceased this work because you were convicted of exceeding .05. You worked briefly in a kebab shop in Warragul after which you attended the local TAFE College and obtained qualifications as a truck driver, forklift driver and for rigging and scaffolding. At the time of your arrest you had been working part-time on your father’s cattle farm and also worked at local saleyards. You have prior convictions for using indecent language in a public place and being drunk in a public place in August 1996 for which you were fined the sum of $200. You were convicted of driving a motor vehicle with a blood alcohol concentration exceeding .05 per cent in 2000. Neither of those convictions is of particular relevance in relation to the matter before me.
In the course of your trial, three witnesses gave evidence. They were Mr Clive Walkinshaw. He gave evidence that he knew you from your work in the Warragul saleyards and that you were a well-liked, quiet, diligent, hard working person. Marie Fells gave similar evidence in the course of your trial, as did one Michael Francis, the manager of Landmark in Warragul, who knew you from your work at the saleyards. I accept the evidence put before me that throughout your adult life you have proved to be a person of good character who has been engaged in full-time employment. I accept that you are a person who is held in high regard by members of the community in which you live, and were it not for your incapacity to control yourself in the circumstances which confronted you, that the likelihood of you coming before a court on serious criminal charges would otherwise be remote.
Evidence was led on your behalf at your plea hearing. I heard from Ann Hooker, the Youth Development Officer at Port Phillip Prison. She told me that you came into contact with her first in approximately February of 2006 when you were being assessed in relation to a prisoner listener and prisoner mentor role within Port Phillip Prison. In this regard, it should be noted that you have been in custody from the time of the commission of this offence and that no application for bail has ever been made by you. I accept this as a reflection of your remorse. Ms Hooker informed me that you were assessed as an appropriate person to undertake the prisoner listener role. Such a person is a prisoner who has access to units around Port Phillip Prison to enable him to talk to prisoners to assist in preventing incidents of self-harm. You undertook some 50 hours of training and in due course you completed assessment as a prisoner mentor and were placed in the Youth Unit of Port Phillip Prison to undertake this role. Ms Hooker spoke highly of your capacity to assist young persons in the unit who are not coping. You have also been appointed as a billet in the unit and you have been involved with a young achievement program called “Hard Yards” which enables young prisoners to engage in the running of a small business for the benefit of charity. Tendered before me were a number of certificates of completion by you of courses related to consequential thinking and offending behaviour, as well as completion of education through Kangan TAFE College. I accept that you have used your time in prison so far diligently and productively.
However, as well as matters personal to you, such as the prospects of your rehabilitation, which I accept are good, I must nevertheless take into account other matters. Regrettably, in our community violence inflicted upon others in circumstances where persons are incapable of coping with a breakdown of relationship is far from uncommon. I accept that your original plan on the night in question was to commit suicide. I accept the opinion of Mr Jeffrey Cummins who has provided a report that the shooting incident occurred under circumstances where you were acting in an acute state of grief characterised by symptoms of depression and suicidal ideation. Nevertheless, members of the community who make a decision to inflict violence upon others in consequence of their incapacity to deal with, or to seek help from others, in relation to their relationship difficulties must understand that if they resort to violence, serious consequences will follow. In this regard, general deterrence is a major consideration in relation to sentencing you.
In addition, I am called upon by the Sentencing Act to denounce your conduct and to impost a just punishment. I have given consideration to the current conceptual approach to the crime of causing serious injury intentionally as enunciated by Nettle JA in DPP v Zullo.[1] Taking all of those matters into account it must be concluded that notwithstanding all that may be said on your behalf this is a very serious example of the crime of causing serious injury intentionally. You entered the home of a sleeping man who was defenceless to you and fired shotgun shells on not one but two occasions at him with the intention of causing him serious injury. Your intention succeeded. As has been conceded by your counsel, and indeed as was conceded by you, when you decided to make no application for bail, the offence which brings you before the Court is of such seriousness that there is no alternative but to impose a sentence of imprisonment upon you. On the count of intentionally causing injury I sentence you to 8 years’ imprisonment. On the count of causing injury I sentence you to one month’s imprisonment. Accepting as I do that your rehabilitation is well advanced I consider it appropriate to direct that you not be eligible for parole until you have served 5 years’ imprisonment. Pursuant to s.18 of the Sentencing Act I declare that you have served 531 days of pre-sentence detention and I direct that the same be noted in the records of the Court.
[1][2004] VSCA 153.
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