R v Campbell
[2013] VSC 348
•12 July 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. of 0175 of 2012
| THE QUEEN |
| v |
| SHANE LEONARD CAMPBELL |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2013 | |
DATE OF SENTENCE: | 12 July 2013 | |
CASE MAY BE CITED AS: | R v Campbell | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 348 | |
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CRIMINAL LAW – Sentencing – Affray – Plea of Guilty – Voluntary surrender to police – Sentence of 1 year 4 months imprisonment – Time served by way of pre-sentence detention.
CRIMINAL LAW – Sentencing – Contravention of suspended sentence – Fine.
CRIMINAL LAW – Sentencing – Contravention of suspended sentence – Process where offender before higher court, orders of Magistrates Court - Powers of court on finding of guilt for contravention of order as to suspended sentence – Power to make no order with respect to suspended sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Goodenough | Office of Public Prosecutions |
| For the Accused | Mr J. Taaffe |
HIS HONOUR:
On 8 July last, I sentenced your co-offender Christian Pickering for the offence of affray. Whilst you have pleaded guilty to participation in the same affray, there are some distinctions factually between your respective positions.
On 10 February 2012, you had been separated from your former partner Nicole Taylor for about three weeks. Your relationship with Ms Taylor had been volatile and the separation acrimonious. Shortly after your separation, she commenced a relationship with another man. A series of hostile incidents occurred between you and Ms Taylor and her friends and supporters, one of whom was Ben McLeod. It is unnecessary to recite the complete background. Mr McLeod was upset at your agitated attendance at the home of Alva Taylor on Tuesday 7 February 2012. Ms Alva Taylor is an Aboriginal elder who lived in the Horsham area. Nicole Taylor’s new partner lived with Alva Taylor, as did Mr McLeod. Your actions and words apparently unsettled Alva Taylor, although when you were asked to leave you did so.
Ben McLeod became agitated and upset with you. He telephoned you on 10 February 2012 at 12.14am. He said he wished to meet with you ‘one on one’ to sort things out. This was an unsatisfactory call during which various threats were made, I suspect both ways.
Mr McLeod spent the afternoon of 10 February drinking alcohol and smoking marijuana. He went for a swim with others and consumed more alcohol. He discussed with others the issues he had with you. The police apprehended him driving his vehicle at about 7.00pm; they breathalysed him and he was arrested. His blood alcohol reading was such that he lost his licence immediately for eleven months and was told he was liable for a substantial fine. He became further agitated and was lodged in the cells for a little over an hour. Upon his release, he was intoxicated and emotional.
At 9.45pm, he armed himself with a hunting knife and a shortened billiard cue. Nicole McEwan, ill-advisedly in my view, drove him to your house. He smashed one of your windows. She then drove him to 12 McMillan Court, Horsham where a 15th birthday was taking place and where they suspected you were.
Mr McLeod left the vehicle and approached a group of young men near the front fence of 12 McMillan Court. He produced the shortened pool cue and called for you to come outside. At this stage you were not in the immediate area. Another young man approached Mr McLeod armed with a Bundi – an Aboriginal hunting weapon. Mr McLeod produced a hunting knife and then struck a young man across the face with the cue stick.
Nicole McEwan tried to drag Mr McLeod away but was shrugged to the ground. The group, which now included you Mr Campbell, advanced upon Mr McLeod who had retreated to the corner of McMillan Court and Shirley Street. Christian Pickering unsuccessfully tried to punch him and fell to the ground. Mr McLeod ran approximately 50 metres. The group chased him. You reached him first Mr Campbell, and punched him to the jaw. Others struck and punched him and he fell to the ground. He was repeatedly kicked and punched by two members of the group and then struck several times to the head with an iron bar by one particular group member. This latter action caused Mr McLeod’s death.
Your role in the affray was to be part of the group that chased and violently assaulted Mr McLeod. The summary of prosecution opening ascribes to you responsibility for only one direct physical application of force to Mr McLeod – the punch to the jaw that I have previously described.
This is only one aspect that I must consider in evaluating your criminal conduct. I accept that your conduct was spontaneous and that it occurred in the face of some provocation, but it also involved a group attack upon a man rendered defenceless by that group. It took place in two locations, extended over some minutes and involved the use by some of the group of crude but effective weapons. By your activities you helped to promote the affray and, like Mr Pickering, you must take some share of the blame for the overall picture. As with Mr Pickering, I emphasise that I cannot and do not sentence you for causing Mr McLeod’s death.
I consider there were some self-serving aspects to your record of interview answers, however I also consider that in it you exhibited a measure of remorse. I am also prepared to infer some remorse from your plea of guilty to the charge of affray. You are also entitled to a benefit for saving the community the inconvenience and expense of a quite lengthy affray trial.
As with Mr Pickering, I have read a Victim Impact Statement from Ms Sims, the mother of Ben McLeod. The circumstances of her son’s death have caused her and her family great distress. To the extent that that distress can be attributed to your offending on the charge of affray, I take it into account. As I said the other day in Mr Pickering's sentence, it is impossible not to feel great sympathy for Ms Sims.
Your prior criminal history is unimpressive. Between 2005 and 2007, you were convicted of, amongst other things, recklessly causing injury on two occasions, assault with a weapon, threatening the good order of a gaol on two occasions, threatening to and actually damaging property, hindering police and breaching an intervention order. This spate of offending commenced when you were well into your 30s and appears to have occurred within an alcohol-fuelled and sometimes tumultuous de facto marital relationship.
In very late 2007, you threatened people with whom you and your then partner were feuding. You fought a man named Thomas Clarke, initially relatively harmlessly. But you then took possession of a knife and threatened to kill him. You were persuaded to drop the knife, and then after some exchanges with others you threw a roundhouse right hook at Mr Clarke, who had his back to you. You knocked him out and then, it seems, stomped on his head. Mr Clarke suffered a fractured cheekbone, eye socket and jaw. This was a most serious assault which could have had tragic consequences. You were charged with recklessly causing serious injury. The matter was not dealt with until 9 February 2011 as you absconded on bail. I gather from the certified extract of conviction that you served 228 days on remand for that offence. I shall return to this aspect later in these reasons. It is sufficient to say for sentencing purposes on the affray charge that this is a serious prior conviction.
You kept a low profile between your absconsion whilst on bail in 2008 and your arrest in mid-2010 and it is encouraging that you do not seem to have offended during that period.
Mr Taaffe, in the course of a most competent plea, took me to some aspects of your personal history. By any standards you have travelled a hard road. You were born in Port Augusta prison and remained there until you were 6 months old. You never met your parents while you were growing up. You lived with friends or relatives and then with foster families. You lived on the streets at 13 and were made a Ward of the State. You met your mother for the first time when you were 15. You met your father when you were 24. Your people are from the south coast of South Australia and you are proud of your Aboriginal heritage. You left school in Year 9 and you have worked primarily as a labourer over the years and have also been unemployed for relatively significant periods.
Your family life as an adult has also been unsettled. Your 12 year relationship with Nicole Taylor concluded shortly before you were arrested for this offence. Your three daughters from this relationship have not seen you since you were imprisoned. Acting responsibly as a parent is a real challenge for you as you face the future It seems that alcohol has been a problem in your life for many years and I have been provided with summaries of three past episodes of offending. Each offence was committed against a background of alcohol abuse. As you approach 40, still in apparent good health, you may reflect that you are not 18 anymore and the time has come to take control of your life and to avoid situations where trouble may arise. Now only you can do that.
I have been supplied with a psychological report prepared for your 2011 court appearance. Your traumatic childhood and early adulthood has led you to be guarded and suspicious of others. That is not surprising, nor is it surprising that in late 2010 you were exhibiting signs of post traumatic stress disorder.
I accept that your time spent on remand has largely been served with the spectre of a trial for murder hanging over you. I consider that that would necessarily have added to your anxieties about your future and I take it into account.
Your prior history and the circumstances of your current offending require that I give some weight to the sentencing purposes of general and specific deterrence. For the reasons that I have expressed, I believe you are not beyond rehabilitation and I give weight to this in this sentencing exercise. Your circumstances and your actual offending are different to Christian Pickering’s and in some respects more serious however in all the circumstances I consider it would be unjust to differentiate greatly between you, and the sentence that I will impose shortly on the affray offence will be one year and five months’ imprisonment.
That is not the end of this exercise however. On 19 February 2011, at the Horsham Magistrates’ Court, you were convicted of:
· Recklessly causing injury;
· Recklessly causing serious injury;
· Theft;
· Handling/Receiving/Disposing of stolen goods;
· Recklessly causing serious injury.
You were sentenced to nine months’ imprisonment for these offences. Six months of that sentence was suspended for 18 months and thus remains unserved. I shall refer this as the original sentence. The offence of affray, to which you have pleaded guilty in this court, was committed during the operational period of the suspended sentence. I have transferred the breach of suspended sentence from the Magistrates’ Court to this court pursuant to s 243 of the Criminal Procedure Act 2009. You have pleaded guilty to that breach through your counsel.
It follows that in addition to sentencing you for the affray I must (a) sentence you for the breach and (b) consider what order, if any, to make in respect of the six months unserved portion of the original sentence.
I have reviewed the circumstances of the recklessly causing serious injury offence earlier in these reasons. This was one of a number of offences that gave rise to the original sentence. I consider that offending to be at the higher end of culpability for this type of offence and I consider the penalty imposed at the Magistrates’ Court to be lenient.
I am required to restore the part-sentence held in suspense and order you to serve it unless I am of the opinion that it would be unjust to do so because of exceptional circumstances that have arisen since the order partially suspending the sentence was made (s 83AR(1) and (2) of the Sentencing Act 1991).
Mr Taafe submitted that the following facts in combination were sufficient to constitute ‘exceptional circumstances’ that have arisen since the order partially suspending the original sentence was made:
· The original offences are now more than five years old;
· You have spent 513 days or thereabouts on remand facing the uncertainty of a murder charge;
· Had the affray been dealt with in a timely way you would have had the opportunity to submit to a sentencing court that the six months owing under the suspended sentence should be served concurrently, or partially concurrently with any sentence imposed on the affray charge. By dint of timing, you have lost that opportunity.
After some considerable deliberation I have concluded there is merit in these submissions. Although the original offending was very serious you were then 33 or 34 years old. You are now about to turn 40. Had you been charged with affray and not murder initially it was an offence capable of being dealt with quickly and in the Magistrates' Court.
Had that have been done no doubt it would have been submitted on your behalf that the principle of totality had an important role to play in the sentencing exercise and that the court should not conduct a mere arithmetic exercise. It would have been submitted on your behalf that the court should examine the overall totality of the criminal behaviour and sentence on the basis of that totality and all other sentencing considerations.
It is no fault of yours that you were initially charged with murder but the consequence of it, unfortunately, has been to deny you an early resolution of the affray charge and so to deny you the opportunity of arguing for concurrency or partial concurrency between the original sentence held in suspense and the affray sentence.
If I were to restore the sentence held in suspense and order you serve it pursuant to s.83AR(1)(a) the result regrettably would be a mathematical exercise rather than a sentence that attempted to synthesise the overall totality of your criminal behaviour with other sentencing factors. Thus you would be denied the potential benefit of the principle of totality and its moderating effect on the overall sentence.
I regard these circumstances as unusual and unlikely to be repeated regularly. They are sufficiently unusual, in my view, for them to be properly characterised as exceptional within the meaning of s.83AR(2).
It follows that the options open to me in dealing with the suspended sentence are expanded to this extent, I may restore part of the part-sentence held in suspense and order that you serve it (s.83AR(1)(b)) or I may make no order with respect to the suspended sentence (s.83AR(1)(d)). I doubt that I have the power to extend the operational period of the suspended sentence as it was not a wholly suspended sentence as required by s.83(AR)(1)(c). After some anxious consideration I have determined to make no order in respect of the suspended sentence.
You have now served, by my calculations, 74 weeks in custody, most of it whilst having a murder charge hanging over you. Had you have been dealt with in a timely way I consider that any sentence imposed including the breach of suspended sentence would likely have been within the general range of the time now served by you in custody.
I have remarked earlier, Mr Campbell, that you have travelled a hard road. At 40 and in apparent good physical health you now have the opportunity to breaking the cycle of your adult life which has been, to date, to be imprisoned, to be released on conditions, to offend again, to be imprisoned and so on.
You will leave this court with no parole owing and no suspended sentence hanging over your head. You will have a clean slate, the challenge for you is to keep it clean and it is no-one else's challenge but yours. It is up to you.
Stand up please Mr Campbell.
1.On the charge of affray, I sentence you to one year and five months’ imprisonment. I declare that but for your plea of guilty I would have imposed a sentence of two years’ and one month imprisonment.
2.I make no order in respect of the past sentence held in suspense that is identified in Charge 1 and Schedule 1 of the breach summons and which was originally imposed at the Horsham Magistrates' Court on 9 February 2011.
3. I fine you$50 on Charge 1 of the Breach Summons
4.Charges 2 and 3 on the Breach Summons are struck out.
5.I direct that 518 days, including this day, have been served by way of pre-sentence detention.
6.I grant a stay of 3 months for the payment of the fine.
You may be seated, Mr Campbell.
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