R v Carrington
[2007] VSC 537
•11 October 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1588 of 2006
| THE QUEEN |
| v |
| JAMES DANIEL CARRINGTON |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 September 2007 | |
DATE OF SENTENCE: | 11 October 2007 | |
CASE MAY BE CITED AS: | R v Carrington | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 537 | |
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Catchwords: Intentionally causing serious injury – Discharge of firearm in public – Excessive self-defence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman SC | Office of Public Prosecutions |
| For the Accused | Mr D.G. Wraith | Vines Lawyers |
HIS HONOUR:
James Daniel Carrington, on 20 September 2007, after a trial lasting seven days, you were convicted at the Supreme Court sitting at Geelong of one count of intentionally causing serious injury to Lisa Jane Steen. You were acquitted of both the attempted murder and attempted defensive homicide of Ms Steen.
After conviction for that offence you pleaded guilty to two counts of being a prohibited person, having in your possession an unregistered firearm. Count 1 relates to a .22 calibre Winchester rifle and Count 2 relates to a sawn-off 12 gauge bolt action shotgun. You also pleaded guilty to the cultivation of a narcotic plant, Count 3, and the possession of cannabis, Count 4.
You have been in custody since 27 March 2006, being the date on which you were arrested on these matters.
On Thursday 9 March 2006 Lisa Steen was living at 18 Curlew Crescent, Norlane. Between 6.00 p.m. and 6.30 p.m. on that day you and Susan Timms went to see her. Ms Steen had a supply of alcohol and you had brought alcohol with you. Why it was you went to the house was the subject of dispute. Ms Steen said that she arranged for Ms Timms to visit and you came along. You and Ms Timms said the visit had been arranged with you. Nothing turns on the difference in those versions of events.
The evening proceeded in an unremarkable and apparently amicable way. There was some discussion between you and Ms Steen about damage which your two sons had done to a pond in her yard, but no difficulty arose out of that. The three of you were drinking during the evening and by your own admission you had consumed “speed” (amphetamine) prior to your arrival.
It is common ground that at some time later in the evening, probably about 10.30 p.m., you received a telephone call from a man you called “Greg”. Ms Steen reacted to that call. Her daughter was missing from home and was believed to be in Queensland. A day or so earlier Ms Steen said she had received a call from a man called Greg who knew something about her daughter. There was some substantial dispute about the call. The exact details of what occurred are difficult to discern because each of the three people present gave a different version of it.
In your record of interview taken on 27 March 2006 you said that Ms Steen physically attacked you and scratched your arm. Whether that was in an attempt to get the phone is not clear. You said in your record of interview that Ms Steen produced a sawn-off shotgun, held it about “half a foot off my fucking face” and loaded it. You said that you managed to escape from the house and get your .22 rifle from under the carpet in the boot of the car.
Ms Steen gave evidence that she at no time had the shotgun, although she did admit ownership of it. Ms Timms gave evidence that Ms Steen did produce the shotgun and behaved in a threatening way with it. Ms Timms apparently did not see the gun loaded or see it pressed into your face. Ms Timms gave evidence that she was crawling around on the floor at various times looking for a phone and did not see what was occurring. Her evidence in that regard was unconvincing.
Ms Timms gave evidence that when you left the house, Ms Steen was concerned that you had gone to the car to get a gun. It is problematic whether or not Ms Steen had the shotgun before you left the house, but there is no evidence from which I could find beyond reasonable doubt that Ms Steen had not produced the shotgun whilst inside the house and for the purposes of sentencing I proceed on the basis that she did produce it.
It follows that I accept that Ms Steen left the house with the shotgun. I am also satisfied, however, that she did not wave it in the circumstances described by you. The evidence on that issue is that the shotgun when recovered was not loaded and a cartridge was found on the ground near where Ms Steen fell.
You said that Ms Steen followed you out of the house with the shotgun. You finished up with the shotgun and the finding of the cartridge as described above support your assertion that Ms Steen brought the shotgun out of the house.
When Ms Steen came out of the house she moved towards you. You then shot her four times. On any version of events Ms Steen had quite a long time in which to fire the shotgun and had not done so. When the shotgun was recovered it was not working. When it fell into that state of disrepair is not known and there is no evidence which could be found that either you or Ms Steen knew of that fact at the time of the incident.
Ms Steen said that the first shot which hit her was in the left buttock. If that was so she would have immediately fallen to the ground because her femur was smashed by the bullet. Although I regard Ms Steen as being an unreliable witness on the issue of whether or not she produced a shotgun, I do not see any reason why her evidence would not and should not be accepted on the order of events.
The events outside the house occurred in a relatively small area, something like that which would be occupied by two motor cars. You said it was dark and you could not see, but neighbours who were much further away could make out the figures and see a reasonable amount of what was happening.
The .22 Winchester rifle that you were using was a lever action repeating rifle. You had to work the lever action between each shot. On the evidence of a number of the neighbourhood witnesses some time elapsed between the firing of the shots.
I am satisfied that the jury accepted that you were responding to some threat as you saw it, but that the firing of four shots in the circumstances was excessive and unreasonable.
Ms Steen was shot in the left buttock. Another shot entered her right forehead, another her left eyebrow and one in the wrist. She has ongoing difficulties. Her left femur was fractured and she has a metal rod from her knee to her hip. She has no feeling in the first three fingers and thumb of her right hand and halfway up her right arm. She has a metal plate in her forehead and two bullet fragments in her neck at C5 and C7 which cannot be removed.
After the shooting she was taken to the Geelong Hospital and then transferred to the Alfred Hospital where she remained for over two months and in rehabilitation for two and a half months after that.
The jury were not satisfied beyond reasonable doubt of intention to kill. They were satisfied that you intended to cause serious injury and although you strenuously maintain that you acted in self-defence, intention to cause serious injury was not in dispute and realistically could not have been.
As I have already said the jury must have concluded that your use of the firearm or at least to fire four shots with it, was not reasonable in your self-defence. The weapon held by Ms Steen was never fired, you had managed to escape from the house, you had got to your car, opened the boot, retrieved the weapon from under the carpet in the boot and loaded it. I am satisfied that the jury accepted that Ms Steen fell to the ground after the first shot. It is likely that the jury reasoned that you were no longer under any threat which necessitated the firing of the additional shots. If that means you are not legally accountable for the leg injury you are still responsible for the two shots to the head, both of which brought serious injury and both of which could have caused even more serious injury, including death, and for the injury to Ms Steen’s wrist.
After the shooting you left the scene, taking both weapons with you. You were arrested on 27 March 2006 at Shepparton. When arrested you told the police in the tape recorded interview that you had acted in self-defence. You expressed fear of Michael Timms, the husband of Susan Timms and sister of Lisa Steen. You said you thought you might have been set up. Those apprehensions were based upon the fact that you had shot Michael Timms with a crossbow and grazed his head causing a 15 centimetre laceration to the scalp. When Timms tried to defend himself you knocked him to the ground and continued to punch and kick him.
You were on bail for those matters when you committed these offences. You subsequently pleaded guilty to one count of recklessly causing serious injury before His Honour Judge Hart and you are now serving the sentence of two years with a non-parole period of one year for that offence.
It was put on the plea that you were afraid of Michael Timms and that this incident with his sister had to be seen, in part, in relation to that history.
I am prepared to accept that you more readily responded to the situation using a firearm because of that history, but you get little credit for it because you had taken the law into your own hands when you attacked Mr Timms.
The circumstances surrounding this offending are very serious. The use of a firearm in a suburban street is of great concern. Fortunately others were not placed immediately at risk, but they might have been because as soon as the first shot was fired local residents came to their windows and some came out of their houses.
The crime of intentionally causing serious injury carries a maximum sentence of 20 years. The fact that you were not the initiator of this incident nor the first to produce a firearm makes it a less serious example of the offence. Were it not for those circumstances this case would be in the most serious category.
You have admitted prior convictions dating from 1987 when you were 19 or 20. You have 20 prior appearances including your appearance before Judge Hart which is not a prior conviction, but is nonetheless relevant in forming an important part of your antecedents. Prior to that appearance all your prior appearances were in the Magistrates' Court although on one occasion you appealed to the County Court.
You have been convicted of 63 offences, many of them dishonesty: theft, handling stolen goods and fraudulent use of number plates. Others are for traffic offences, driving whilst disqualified, exceeding .05 and refusing a breath test. In relation to violence you have prior convictions for unlawful assault, assaulting a police officer in the lawful execution of his duty, recklessly causing serious injury and having engaged in reckless conduct likely to endanger persons and threatening serious injury.
You have been released on Community Based Orders and an Intensive Corrections Order and had numerous sentences of imprisonment suspended. You have breached many of the orders and have been dealt with leniently for the breaches in nearly every case.
Prior to your present period of incarceration which commenced on 27 March 2006, the longest sentence you have served has been 12 months imprisonment which was imposed in 1997. It is clear that these last two incidents are by far the most serious in which you have been involved.
A report prepared by Mr Ian Joblin, a very experienced forensic psychologist, was tendered on the plea. The report had been prepared for the earlier plea hearing. The matter of consequence which occurred in the meantime was that both of your parents had been diagnosed with cancer and that is a matter of concern for you. The report usefully sets out your history and I have used it for the matters now set out.
You are now almost 40 years of age, having been born on 12 November 1967. You were raised in Thomastown and completed a couple of years of secondary education at the Lalor Technical School. Although you have no formal qualifications you have shown skill both with upholstery and with motor vehicles, and you operated businesses both as a driver and a car wrecker.
You had successfully competed in Motorcross, but because of a large number of injuries you were forced to give it up. You gave up Motorcross at the age of 19. You were first convicted not long after you gave up that sport.
You have been involved in a number of relationships. You married in 1988 and continued in that relationship until 2003. In all you have four children. You have a daughter from your marriage and three sons from another relationship. Your daughter lives with her mother in Melbourne and you have maintained a good relationship with her.
Your eldest son who is now 16 lives with his mother in Cairns, although in the past he regularly visited you both in Melbourne and Geelong. You have twin sons who are 13 years of age, and you have raised them since they were two months old. The boys are living in supported accommodation in Geelong and apparently one is now in trouble with the authorities. You sons seem to have had limited access to you since you went into custody. You expressed concern for your sons throughout the record of interview, you did so to Mr Joblin, and you have done so to me through your counsel, Mr Wraith. I accept that you have a deep affection for your sons and are genuinely concerned about their future. I accept that as Mr Joblin puts it:
“It is my experience that many people who demonstrated a tough minded and somewhat anti-social presentation as Mr Carrington does, soften when discussing dependant children. It became apparent that Mr Carrington was more concerned about the children than himself.”
At the time of these offences, you had settled in Geelong and commenced a relationship with Ms Timms. You were supporting your twin boys and they had been involved in local sporting activities.
The incidents for which you were sentenced by His Honour Judge Hart, which occurred in September 2005, arose in part out of the very turbulent relationship Ms Timms had with her former husband, Michael. Mr Michael Timms came to the house where you were living with Ms Timms to collect some belongings and that led to you shooting at him with a crossbow and striking him on the side of the head. You have expressed great fear about the safety of Ms Timms and have taken a very protective attitude to her.
One matter which flows from the earlier incident involving Michael Timms is that it involved a weapon, namely a crossbow. That weapon is inherently dangerous. You were on bail for that matter when these events occurred. You have shown that you are prepared to use weapons and in this instance to carry a rifle around with you in the car. You appear to have learned no lessons from your involvement with Michael Timms; indeed, all you did was to arm yourself with a more dangerous weapon. In saying that, I am aware that you had not been dealt with for that matter when you committed these offences.
I accept that the production of the sawn off shotgun by Ms Steen was a major catalyst for these events, but they would not have occurred if you had not chosen to arm yourself in the way that you did.
You have a history of alcohol and drug abuse and have been on methadone and bupremorphine which assisted in keeping you off heroin. On the night of 9 March 2005, you had by your own admission, consumed speed and alcohol. You seemed to have been affected by the alcohol but not drunk.
Mr Joblin was of the view that there was no psychological or psychiatric explanation for your early behaviour and none is advanced to explain this behaviour. You had adopted a lifestyle which includes you taking the law into your own hands. If you continue to pursue it, it will mean that you will come into conflict with the authorities on an even more regular and serious basis than you have already.
The maximum penalties for the offences which you now fall to be sentenced are:
(i) Intentionally causing serious injury - 20 years.
(ii) Being a prohibited person in possession of an unregistered firearm - 15 years.
(iii) Cultivation of a narcotic plant - 1 year or 20 penalty units or both.
(iv) Possession of a drug of dependence - 1 year or 20 penalty units or both.
The Crown conceded that neither of the cannabis offences were committed for a purpose relating to trafficking. That concession was appropriate.
It is an aggravating feature of your behaviour that you were on bail at the time you committed these offences for very similar conduct. The sentence you received from His Honour Judge Hart was in all the circumstances a merciful one, but you have now been in custody since 27 March 2006, and you will have qualified for release on 26 March 2007. That is the date because His Honour gave you the benefit of the 141 days you had been in custody. You have no pre-sentence detention for this offence. As far as I am aware you did not apply for bail for these offences. I cannot take into account the decision of the Parole Board not to release you on parole. I do, however, take into account as a general sentencing consideration the fact that you have been in custody since 27 March 2006.
As I have already stated, the offence was committed whilst you were on bail. Section 16(3C) of the Sentencing Act 1991 provides that unless I otherwise order, this sentence will be served cumulatively upon the sentence you are undergoing. I have decided in this case that because you have now been in custody since March 2006, it would be appropriate to order the sentence I impose today be served concurrently with the sentence you are undergoing.
Intentionally causing serious injury is a very serious offence and must be regarded as such. (See DPP v. Lawrence (2004) 10 VR 125).
The general sentencing range was described by Nettle JA in DPP v. Zullo (2004) VSCA 153 at [10] when he said:
“It is said that the largest sentence ever imposed in this State for an offence causing serious injury intentionally is ten years' imprisonment, and it has been said it is only the most serious cases of the offence which have attracted a sentence within what is described as the ‘very top of the range’ of between six and 10 years. In the past that may have been so. When it was the case, a sentence of three and a half years imprisonment with a non parole period of two and a half years might have been within the range. But it is no longer the case. The ‘very top of the range’ of six to ten years was established when the maximum penalty for causing serious injury was a twelve year and six month imprisonment. The maximum penalty is now about double that amount. Now the ‘very top of the range’ is upwards of fifteen years.”
I have not been able to find any case of causing serious injury which involved the firing of at least four shots at a victim in the street.
There are few matters in mitigation. You stood your trial for attempted murder, you should not be punished for that. Given your defence it was entirely understandable that you would take the matter to trial. The trial was conducted sensibly and confined to the issues in dispute and I give you credit for that. On the other hand I see no evidence of remorse or even regret for what you did to Ms Steen. Indeed you blamed her.
You have a large number of prior convictions, some of them for violence, but your record although persistent has not been for particularly serious offences. Apparently you have overcome a heroin addiction.
You are still relatively young. You do care a great deal about your children and your 13 year old twin boys in particular.
The matters in mitigation surrounding the offence involving Ms Steen are that she started the violent episode and she produced the sawn-off shotgun although she did not use it in the sense that she did not fire it.
Although your decision to carry and use a firearm was foolhardy in the extreme I sentence you on the basis that it was firing at Ms Steen after she fell to the ground that was excessive and unreasonable. As I have already noted, were it not for those features it would have fallen into the most serious category.
It is serious enough. Ms Steen received two serious head wounds. One penetrated the brain. The other passed from her eyebrow to her neck and she still has bullet fragments in her neck which cannot be removed. She has reduced use of part of her hand and her arm. She was also shot in the wrist. Ms Steen gave evidence and her recovery has been good. She will have permanent reminders of your conduct. Ms Steen did not make a victim impact statement. I am satisfied that she knew that she had the right to do so.
The need for just punishment is clear. The need for personal deterrence arises because you were on bail for not dissimilar conduct. There is a high need for general deterrence. Those in the community who are minded to use firearms in suburban streets to shoot other members of the community, even in the name of misguided self-defence, must understand that such conduct will lead to very severe punishment.
The other offences are in a different category. The first count of being a prohibited person in possession of an unregistered firearm related to the .22 Winchester rifle. You had tried the rifle out previously and had had possession of it for many months, as you admitted in the record of interview. You said that you took the rifle with you on the night of 9 March 2006 because you were afraid that Michael Timms might have been at the house. If you actually entertained such a fear it is impossible to understand why you had gone to the house. I find that you are in the habit of carrying that firearm with you. It is a serious offence and some portion of the sentence will have to be served cumulatively. You took the sawn-off shotgun from Ms Steen. I find that your possession of that weapon does not merit the imposition of any additional punishment. The cannabis charge related to the police finding one cannabis plant and some cannabis seeds when they searched the house where you had been living at 19 Eliot Court, Whittington. I indicated on the plea that I would impose small concurrent sentences on these matters and I intend to do so. I have taken into account that you pleaded guilty to those offences and have always been prepared to do so.
On Presentment U00681349, the count of intentionally causing serious injury, I sentence you to be imprisoned for seven years.
On Presentment U00681349.2, on Count 1, being a prohibited person in possession of an unregistered firearm, I sentence you to be imprisoned for two years and I order that six months of that sentence be served cumulatively upon the sentence on Presentment U00681349. On Count 2, being a prohibited person in possession of an unregistered firearm, I sentence you to be imprisoned for one year. On Count 3, cultivation of a narcotic plant, I sentence you to be imprisoned for seven days. On Count 4, possession of cannabis, I sentence you to be imprisoned for seven days.
To avoid any confusion the sentences on counts 2, 3 and 4 on Presentment U00681349.2 are to be served concurrently with each other and with the sentence imposed on Presentment U00681349.
That is a total effective sentence of seven years and six months imprisonment. In fixing a non-parole period I have had regard to the fact that you have been in custody since 27 March 2006. I fix a period of five years before you are eligible for parole.
For the reasons set out in these sentencing remarks, I order that these sentences be served concurrently with the sentences you are undergoing.
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