R v Carter & Walters
[2009] VSC 5
•9 February 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1457 of 2007
| THE QUEEN |
| v |
| BRIAN JOHN CARTER and DAVID LESLIE WALTERS |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 17 September, 24 October 2008 | |
DATE OF SENTENCE: | 9 February 2009 | |
CASE MAY BE CITED AS: | R v Carter and Walters | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 5 | |
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Reckless conduct endangering life - pleas of guilty – assistance to crown – alcohol dependence – rehabilitation – no injury suffered
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C Barbagallo | Office of Public Prosecution |
| For the Accused Carter For the Accused Walters | Mr S Kennedy Mr A Dickinson | Ryan Maloney & Anderson Martin Irwin & Richards |
HER HONOUR:
Brian John Carter and David Leslie Walters, you have both pleaded guilty to a series of offences that occurred on 31 December 2006, being that you both pleaded guilty to Count 1, being a count of recklessly discharging a firearm that placed or may have placed a person, being Phillip John Pierson, in danger of death. You have both pleaded guilty to Count 2 that, on the same date 31 December 2006, you recklessly engaged in conduct, namely the discharging of a firearm, that placed or may have placed persons in danger of death. David Leslie Walters you have also pleaded guilty to Count 3, of being a prohibited person in possession of an unregistered firearm and you Brian John Carter have pleaded guilty to Count 4 being that, on that same date 31 December 2006, you were in possession of an unregistered category A or B longarm. You have both admitted prior convictions.
The maximum penalty for reckless conduct endangering life is 10 years imprisonment, for possessing an unregistered category A or B longarm two years imprisonment and for being a prohibited person in possession of an unregistered firearm 15 years imprisonment.
In respect of you Brian John Carter, you have two prior convictions which have very limited relevance to this offence. They are that you were previously convicted at Wentworth on 8 February 2001 of driving on the road whilst suspended. You were sentenced to pay a fine of $200 and disqualified from holding or obtaining a drivers licence for a period of 12 months. You were also previously convicted in the same court on 4 September 2001 of driving on the road whilst suspended and driving whilst disqualified from holding a drivers licence. You were fined on each of those counts and disqualified from obtaining a licence for a period of 12 months on each count.
You David Leslie Walters have far more numerous prior convictions commencing in October 1993, the majority of which appear to relate to offences involving the consumption of alcohol and matters relating to becoming, it would appear, violent while intoxicated. They include: in October 1993, unlawful assault and being drunk in a public place. In June 1994, exceeding the proscribed concentration of alcohol and driving a motor vehicle whilst unlicensed and using an unregistered vehicle. On all those matters you were fined. In August of 1994 at the Mildura Magistrates’ Court you were convicted of unlawful assault - two counts and fined $300 on both charges and, clearly being unable to pay the fine, you were released ultimately on the basis of a community based order and community work of some 15 hours. In December 1994, burglary and theft, for which you were sentenced to an aggregate fine of $200. In March 1996, causing serious injury recklessly, driving a motor vehicle while suspended, unlawful assault (two counts) and damaging property wilfully. You were sentenced to imprisonment for those charges of which the whole of the term was suspended. You breached that and were dealt with on 4 July 1997. Each suspended sentence was further suspended. You again breached it on 10 October 1997 and the sentence was reinstated and ultimately you received an effective sentence of four months’ imprisonment. In October 1997, breaching the terms and conditions of an intervention order and failing to answer bail and again you were sentenced to imprisonment which was wholly suspended. In March 1998, exceeding the prescribed concentration of alcohol and driving a motor vehicle while disqualified for which you were sentenced to one month’s imprisonment concurrent. In September 1999, driving a motor vehicle whilst authorisation suspended and you were placed on the intensive correction order for a period of four months. On 17 November 2000, behaving in a riotous manner while drunk and again placed on a community based order for a period of six months. In August 2001, exceeding the proscribed concentration of alcohol, driving whilst unlicensed, fraudulently using a registration plate and using an unregistered motor vehicle. You received an aggregate order of six months intensive correction and a fine. In August 2002, a count of causing injury intentionally for which you were sentenced to a period of imprisonment of 30 days. In November 2003, causing injury recklessly and sentenced to a term of imprisonment for two months being wholly suspended for 12 months. In August 2004, you breached the suspended sentence and no further order was made. Finally in August 2004, handling stolen goods and you were released on a community based order for a period of nine months.
As I indicated, these offences clearly have a great deal to do with alcohol which is a matter which will become evident as I go through the details of this night and your offending and your personal circumstances. You Brian John Carter are 36 years of age having been born on 3 April 1972. You were 34 years of age at the time of the commission of the offences. You David Leslie Walters were born on 1 April 1971 and are currently 37 years of age. You were 35 years of age at the time of the commission of the offences.
The evening on which this occurred was Sunday, 31 December 2006. It was New Year’s Eve. You were both at the premises of the de facto partner of Walters in San Mateo Avenue, Mildura. There was a New Year’s Eve party occurring at the premises. Both of you had been drinking heavily during the day. Whilst at the party, late in the evening, a rumour went around the party that Donna Walters, who is the sister of you David Walters, had been taken to the Mildura Base Hospital for an emergency caesarean. At that stage she was eight months pregnant. You and others formed the belief that Phillip Pierson, the victim in Count 1 who was married to Donna Walters, was responsible for the emergency caesarean having occurred. There being a belief that he had beaten your sister in some manner or exhibited violence towards her which caused her to go into premature labour. This was not in fact true but that was unknown to you both at that stage.
Your sister and Pierson had had a difficult relationship and as a result you and Pierson had quite a level of hostility towards each other. You Brian Carter did not really know Pierson and certainly there was no animosity or ill-feeling between yourself and Pierson in the background. You Carter however were a close friend of Walters and clearly you did many things together in the pursuit of that friendship.
In your heavily intoxicated states you formulated a plan to drive to the Mildura Base Hospital where you believed Pierson would be in attendance and obtain some sort of revenge against Pierson for what you considered or believed he had done to your sister. You both then got into a motor vehicle - neither of you of course should have been driving, but you got into the vehicle owned by the son of David Carter’s de facto - and drove from San Mateo Avenue to a liquor outlet stopped the car and purchased more alcohol despite the quantity that you had already consumed. At the hospital you parked for a while and sat talking, the intention at that stage was that you were going to bash Pierson. After talking for a while you, Walters, made a comment to the effect that you were going to kill Pierson. How much of that was bravado is not really known, or even if it is just a normal phrase that you use indicating displeasure, but what occurred after that, is that the car in which you, Walters, were the driver then went around to the home of you, Carter. You Carter went inside and collected a sawn off double barrel shotgun which was loaded with two cartridges. It was in a bag and it was in pieces in the bag. You returned to the vehicle and drove back to the hospital. On the way there you assembled the double barrel shotgun. In a statement made by you Brian Carter, at page 5 you said:
I can't recall whether we had the discussion when the gun was first mentioned or whether it was when we were on the way down to the hospital but we discussed what we were going to do and who was going to use the gun. David wanted to use the gun to kill Phil. I reckon that David had too much to lose and that it was my weapon. Dave really wanted to kill Phil but because I thought he had too much to lose I wasn’t prepared to let him pull the trigger. Therefore I was prepared to go through with shooting Phil or shooting at Phil so that Dave wouldn’t do it. I didn’t want to kill Phil but I would have done this to prevent Dave from shooting Phil.
You discussed obtaining a car park position facing in a position that you could see the accident and emergency entrance of the Mildura Hospital. The car was reversed into the car spot to enable you to be able to leave after the shooting. You both assumed that Pierson would come out of the main entrance, or out of the accident and emergency entrance of the Mildura Base Hospital, and both were visible from the position in which you parked. You, Carter, wound down the window of the passenger side of the vehicle and you had the gun sitting on your lap. After a short time Pierson came out of the hospital and you, Walters, pointed him out to Carter. Pierson was observed arguing with a member of the Walter’s family. As you observed him you, Walters, started the car and drove towards the area where Pierson was. You pulled up on a slight angle. Pierson was approximately five metres away at that point. You, Carter, then called out to Pierson something along the lines of Phil come over here. At that stage Pierson walked towards the car and walked over to the front passenger door. He was still walking towards you Carter and was bending slightly down to talk to the person in the passenger seat when you raised the shotgun and fired. You would have been approximately a metre from him. Miraculously, you missed and the police were ultimately unable to locate where the shot had discharged as there was no trace of it. Pierson, realising what had occurred, ducked and ran. He ran to the after hours exit to try and get back into the hospital. He was unable to get in that way so he ran in the opposite direction, obviously to try and find some safety. At that point you Walters started to reverse the car and the firearm discharged a second time. The second shot also missed Pierson but it did in fact hit the major glass wall of the hospital, part of the shot was recovered from a wall at the back of the office area. Behind the shattered glass wall was a nurse’s station of the triage section of the accident and emergency department. You are both incredibly fortunate that no one was hurt or injured by any of this appalling behaviour. Equally fortunate are the persons who were in the accident and emergency area of the hospital, those outside it and Pierson.
It is believed that there were between 20 to 30 people in the accident and emergency department of the Mildura Base Hospital on this night, not surprisingly as it was late on New Year’s Eve. There were also persons in the vicinity of where Pierson was standing outside the hospital. I have received a number of victim impact statements which indicate the fear, shock and terror into which you plunged these people. Not surprisingly people do not expect this type of behaviour to occur at a hospital which is a sanctuary for health and safety and not somewhere you would expect to be shot at. After you left the hospital you went back to your partner’s house in San Mateo Avenue. You Carter got into your own vehicle and drove off with the shotgun. You Walters then got into your own vehicle and drove back to the hospital.
Walters, you spoke to a police officer at the hospital but of course did not mention anything about your participation in the shooting and a short time after you left the hospital with your family members.
In the early hours of 1 January 2007, you Walters were arrested outside your partner’s house on San Mateo Avenue and at about 3 am you Carter were arrested at another address in San Mateo Avenue. Both of you participated in recorded interviews with police. Both of you made some admissions but not total admissions as to what had occurred on the night.
Those are the circumstances that relate to Counts 1 and 2. The possession of the firearm speaks for themselves. Both of you have pleaded guilty to the offences and are entitled to the discount relating to such a plea of guilty. Neither plea can be regarded as an early plea, as the plea of guilty was not made until the door of the court.
You Brian Carter pleaded guilty before me at Mildura and indicated your willingness to assist the police by making a statement and giving evidence.
You David Leslie Walters maintained your plea of not guilty until after Mr Carter had made his statement. It was only after receipt of the Carter statement that you changed your plea to one of not guilty to guilty. Thus, although you are entitled to a benefit for the plea of guilty there is no indication via that plea of any remorse for the offending.
You Brian John Carter are entitled to the discount for your plea of guilty also you are entitled to a discount for your cooperation with the police, your willingness to make a statement and your willingness to give evidence in accordance with that statement.
In relation to this offending, I made an earlier reference to both of you consuming large amounts of alcohol. It would appear that when you talk about drinking a “slab” that what you are referring to is drinking a slab of mixed spirit drinks such as gin and bitter lemon. To that you also add beer, other mixed drinks, other spirits and virtually anything that you can obtain. You both obviously have severe drinking problems.
In this matter there were six victim impact statements tendered to the court. Those victim impact statements vary considerably in their content and the severity of the impact upon those present. Pierson is not one of the persons who have tendered a victim impact statement. Despite the varying content of those statements what is clear is that your behaviour had an impact and a quite significant impact upon a large number of people including parents who were present looking after their children, children who were there to receive assistance, nursing staff, doctors, and ambulance officers. This is a community site where one expects diverse members of the community to be and where they are all entitled to feel safe and secure. This was appalling, irresponsible, unbelievably dangerous behaviour. The maximum penalty for Counts 1 and 2 is 10 years imprisonment on each and in respect of the possession of a firearm two years imprisonment, which reflects the seriousness with which Parliament views offences of this nature.
As well as the circumstances of the offending, I have to take into account each of your personal circumstances when considering the imposition of the appropriate penalty. I will deal with each of your personal situations separately.
You Brian Carter are aged 36 years. You were born in New South Wales to an aboriginal mother and a Caucasian father. Your parents separated when you were three years old, your father obtained custody of the two boys, and you lived with your father until 12 years of age in what was described as a loveless childhood. Your father remarried at some stage and you instructed your counsel that you had an abusive stepmother and you received physical punishment frequently and often unjustifiably, including from your older brother.
At the age of approximately 12 you told your father that you wanted to live with your mother, and your father said if you lived with her you will never see him again. He was true to his word. You have two siblings, an older half sister from your mother’s earlier relationship, and a brother who chose to remain with your father. You have seen your brother only once since the time you left your father and that was at the funeral of your mother in 2001. It would appear that you had more to do with your sister as she assisted greatly in the care of your mother, who had renal failure for the last 10-12 years of her life, before dying of cancer related complications in 2001. It appears that from that stage you have had little to do with her or any members of your family.
You left school at 15 at the request of the school and you became involved in pre-automotive, metal fabrication and welding TAFE courses. You are a qualified backhoe and escalator operator, and a qualified welder, and it is apparent that you are good with machinery. You worked for some years, but have been on unemployment benefits for some time now.
You described yourself as very close to your mother, still residing with her at the age of 30 when she died. You have always had a weight problem, and it would appear that you have a very longstanding problem with alcohol, from about the age of 15 or 16. Both your weight and alcohol problems increased significantly around the time of your mother’s death. Your alcohol consumption commenced with experimental drinking at around age 12, increased with financial independence at age 16, and by the age of 21 you were drinking daily. Alcohol consumption has been a significant problem for you from that time, and you have never sought to address any of your alcohol issues until after the events that brought you before this court occurred. As part of your bail conditions you were to report daily to the Mildura police station for a breathalyser. According to your counsel you were released after serving 212 days in custody, and it would appear that you presented yourself to the Sunraysia Community Health Services on 30 July 2007, at which stage, according to the report that was tendered as exhibit 5; you had been on bail for a period of three months. I have to say that those two sets of times are not consistent but I have no information that allows me to clarify which is correct, so I will give you the benefit of the doubt and act upon the basis that you had three months of moderated sobriety without the assistance of the clinic.
Since you have been attending at the clinic you have been sober. That is an accomplishment which is notable in light of your background and history of drinking. In the report from the health service prepared by Nita Quick, a drug and alcohol counsellor, she stated:
In recognition of his frightening alcohol related capabilities Mr. Carter expressed his desire not only to learn and implement strategies to abstain from alcohol but also to then maintain his developed sobriety. During Mr. Carter’s continuing lengthy engagement in treatment he has participated in a positive manner and has enthusiastically incorporated his continued twelve month sobriety into his daily lifestyle, which given his alcohol consumption history was not undertaken without considerable personal trepidation and doubt. Since his initial appointment Mr. Carter has attended all pre-arranged counselling sessions over a thirteen month period, or if unable to do so he had phoned to notify the writer of such, whilst confirming his next appointment. Mr. Carter’s treatment has focused on harm minimisation strategies, including further moderation of his alcohol use until early September 2007 when abstinence was achieved through behavioural self management strategies.
You have equally done something in respect of your weight, you weighed in excess of 200 kilograms and by the time of the plea you had lost 55 kilograms and weighed then 155 kilos. This may be partially as a result of giving up alcohol and performing some exercise. But it is certainly a positive step in your life.
You have formed a relationship with Ms Pedler, who is on disability benefits, you have been caring for her, she is recovering from Hodgkin’s lymphoma, and she has had some cancerous lymph nodes removed. She has been the victim of sexual assault from her father, and has been an agonising process to come out with that, particularly since she was initially not believed, she has gone to the sexual assault squad and it is being viewed seriously. She is now under the care of a psychologist. Your counsel submitted that you had been a fountain of strength, in relation to that, and described the relationship as a loving relationship that has benefited both of you. This is particular so, it was submitted, in light of the extreme loneliness that you experienced after the death of your mother.
Your friendship with the Walters’ family was a strong friendship and you described them as being like family to you, which together with the excessive consumption of alcohol sheds some light on your involvement that night. In your statement to the police you indicated that you were going to be the shooter, because your friend had a family, and you didn’t want him to be at risk of losing that family, whereas you had nothing to lose.
You David Walters are aged 37, you were born in Wagga Wagga, and moved to Mildura when you were aged 2 years. You are the youngest of five children, your father was an unqualified motor mechanic, your mother was involved in raising the five children, and your parents still reside in the same house in Mildura in which you were raised. Apart from an early involvement with the criminal law, your father and mother both lived law abiding lives, and provided you with a stable life although without much in the way of possessions. Your siblings, who appear to have all been born in a four year period, have all lived positive lives and not been in any trouble with the law, with the exception of yourself and your sister Donna, she having been involved in drugs and the associated dishonesty offences that often accompany that lifestyle.
You attended Irymple State School and Irymple Technical School, which you left part way through the year at age 15. You worked in labouring jobs and then moved onto seasonal picking jobs. After you met your partner Samantha Button around the age of 20 you went to work for her father for about six years as a plasterer. You were working, collecting scrap metal with a relative, at the time of the offence.
You had problems at school in that you had clear problems with learning and at this stage can barely read or write, you have borderline intellectual capacity with an IQ of 77. You experienced bullying at school, had little in the way of friends and did not cope with school, leaving at the earliest possible time.
Like Brian Carter, you have a significant problem with alcohol, which has been a problem for you for a long time. You commenced drinking at a young age and there have been only rare occasions when you have any prolonged period of sobriety. This has caused significant problems in your relationship with Ms Button. You have two children with Ms Button being Steven 13 and Chantelle 10, she has an older child from a previous relationship.
Your relationship with Ms Button has been punctuated with separations that have been related to your alcohol problems. In 2000 you separated and met another woman with whom you entered into a relationship, she had three children from a previous relationship and you married approximately eight months before the end of the relationship. In approximately 2002 you reconciled with Samantha and have been together since that time.
A psychological assessment was prepared in this matter by Mr Bernard Healey on 16 October 2008 and tendered as Exhibit 1 on the plea. He found that you had borderline intellectual capacity, with no signs of cerebral dysfunction. He found that the alcoholism screening test was indicative of classical symptoms of frank alcoholism, and personality testing revealed significant social introversion, a hypomanic trend and schizoid features.
Ms Button gave evidence on the plea before me and I found her to be an honest and frank witness. She appeared to be truthful about your involvement in alcohol and the consequences of that upon the family and your personality. She stated that one of the problems is that you are very much attached to your family, that is your parents and siblings, and spend a good deal of time with them. That leads to heavy consumption of alcohol, as there is always a plentiful supply of alcohol at those times, and consumption is encouraged.
She said that alcohol had caused problems in your relationship, your temper, your relationship with the children and money. She described you as being OK at first but as time goes on you get very drunk and then very aggressive. Alcohol has played a part in all of your prior offences in her view. She said there have been periods when you have stopped drinking, and gave as an example of a time when you had served a short gaol term, and when released you didn’t drink for nine months. She said that during that time you were a totally different person in every aspect, more family orientated, prepared to work, and spend time with the children, laughing and happy. She said that it was not easy, but when you spend time with your family the drinking starts again.
She said that you were on remand for 79 days, on bail then with the condition that you must not drink alcohol but you breached it once. She went to court and gave evidence, and you were then given a curfew and a no drink condition. This occurred shortly after you were granted bail. Since that time she said you have made a very conscious effort to stop drinking and that she had really noticed a difference, that you are like a completely different person, with a different outlook on life, you are less aggressive and angry, quite a joy to be around, you have got really close to his children, and spent a lot of time with them. You have equally been spending less time with the Walters’ family, working with a step brother - Paul, who is a lot younger and does not drink much.
She said that for the first time she believed it was different – it was like the penny had dropped that his own kids and family were just as important, we were all very happy. She said that you were being very considerate, and she was able to talk with you about your drinking telling you how happy she was that you had stopped. Her parents, who had given up on you long ago, are now convinced that you are truly interested in changing your life, and are willing to be supportive of you when released from gaol.
Your prior convictions are clearly related to alcohol, but there are quite a number for violence and that must be taken into account in balancing the sentence that I will impose.
In relation to you both, it is clear that you will need a lengthy period of supervision to ensure that the path of rehabilitation upon which you have both embarked is maintained, and the parole system can be of assistance to you both in helping to achieve that object.
I find that you were both equally involved in these offences and that alcohol, loyalty, anger and total lack of judgment were the precipitating factors. Like the community of Mildura, I take a very serious view of your actions on the night. It is only good fortune that no person was killed, injured or maimed on that night.
I find that you both have reasonable prospects of rehabilitation, not high, but not low. You will both have to work very hard to change your lifestyles in such a complete turnaround, but I do accept that you are motivated to change. Both of you have supportive and caring partners that are prepared to encourage and help you to make, and more importantly, maintain those changes, but ultimately it is up to you.
I consider that the issue of general deterrence is one of importance in your cases, as is the aspect of specific deterrence, although your desire to change and to maintain the changes in your lifestyles reduces somewhat the need for specific deterrence.
It is important that the sentence imposed be an appropriate sentence for the offences committed, whilst balancing all of the aspects of your personal factors, including your pleas of guilty and in your case Mr Carter your willingness to assist the police and give evidence in the trial of Mr Walters.
Accordingly, David Leslie Walters in respect of Count 1 you are convicted and sentenced to be imprisoned for a period of 2 years and 6 months, on Count 2 you are convicted and sentenced to be imprisoned for a period of 2 years and 6 months, on Count 3 you are convicted and sentenced to be imprisoned for 9 months. I direct that 12 months of the sentence imposed on Count 2 be served cumulatively upon the sentence imposed on Count 1, and that the sentence imposed on Count 3 be served concurrently with the sentences imposed on Counts 1 and 2. That makes a total of 3 years and 6 months imprisonment. I direct that you are to serve a minimum of 2 years imprisonment before becoming eligible for parole.
Brian John Carter in respect of Count 1 you are convicted and sentenced to be imprisoned for a period of 18 months, on Count 2 you are convicted and sentenced to be imprisoned for a period of 18 months. On Count 3 you are convicted and sentenced to be imprisoned for a period of 3 months. I direct that 9 months of the sentence imposed on Count 2 be served cumulatively upon the sentence imposed on Count 1, and that the sentence imposed on Count 3 be served concurrently with the sentence imposed on Counts 1 and 2, making an overall sentence of 2 years and 3 months imprisonment. I direct that you are to serve a minimum of 15 months imprisonment before eligible for parole.
I am obliged pursuant to section 6AAA to state the sentence that I would have imposed but for your pleas of guilty. That is difficult to do in these cases, as you would have faced a trial relating to attempted murder, and the settlement of the matters in this manner in some way is a reflection of a discount for cooperation. But doing the best that I can, in respect of you David Walters I would have imposed an additional 9 months imprisonment on both Counts 1 and 2, and an additional 3 months imprisonment on Count 3, a total of 9 months overall. In respect of you Brian Carter, although extremely difficult to state as it is bound up to a degree with your offer to make a statement and give evidence, nevertheless trying to separate out the issue of the plea of guilty only, I would have imposed an additional sentence of 9 months imprisonment on Counts 1 and 2, and an additional 1 month imprisonment on Count 3, a total of an additional 9 months overall.
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