R v Darrington

[2016] VSC 60

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0186

THE QUEEN

v  

DANIEL JAMES DARRINGTON

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 7–9, 12–6, 19–23, 27–8 October, 16 December 2015
DATE OF SENTENCE:	29 February 2016
CASE MAY BE CITED AS:	R v Darrington
MEDIUM NEUTRAL CITATION:	[2016] VSC 60

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CRIMINAL LAW – Sentence – Attempted murder – Prisoner shot deceased’s body with belief deceased was still alive – Prisoner sentenced to eight years’ imprisonment with a  non-parole period of five years – R v Cengiz [1998] 3 VR 720 considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P N Rose QC with Ms C A Boston	Office of Public Prosecutions
For the Accused	Mr J F Desmond	Vines Lawyers

HIS HONOUR:

1. Daniel Darrington — on 28 October 2015, after a trial lasting 16 days — you were convicted of the attempted murder of Rocky Sparticus Matskassy.

1. The circumstances of your offending are somewhat unusual and the task of sentencing you is a difficult one.

1. You and one Steve Domotor spent a good deal of 21 March 2014 looking for Mr Matskassy.  Mr Matskassy was living at Mr Domotor’s house as a tenant.  Mr Domotor wanted him out of the house for reasons which are not entirely clear, but appear to arise out of a visit to the house by a Belinda Martin and her two sons and photographs being taken of the boys posing with a sawn-off .22 rifle in circumstances that it was clear that the photograph had been taken in Mr Domotor’s house.  Mr Domotor was also apparently dissatisfied with Mr Matskassy’s behaviour as a housemate, boarder, or tenant.

1. The two of you eventually found Mr Matskassy back at Mr Domotor’s house.  The circumstances of what followed are that you had a fight with Mr Matskassy over a perceived role that he had played in something that had happened to your son.  You punched and kicked Mr Matskassy, causing his head to bleed.  You instructed him to go to the bathroom and clean himself up.  You said in your record of interview that he returned with a firearm and threatened you with it.  You said that there was a struggle over the weapon and although you may have got general control of the weapon it discharged in the struggle without you meaning to fire it.  The bullet struck Mr Matskassy in the head, and you said he collapsed to the floor.  You said that you thought you had killed him.  You then shot him a second and third time.  In your Record of Interview, you said of the second shot:

Q 502  All right. And what happened after that?

A Well, I couldn’t - I didn't know what to do so - yeah, I didn’t want the bloke suffering so I shot him again, yeah, ’cause he wasn’t dead. Yeah.

Q 538And so what happened then?

A I don’t know. I went and looked at his room and found some more bullets, and I shot him again, yeah, to stop him from suffering.

Q 763Yeah. So when you shot him that second time you said that that was so that he wouldn’t suffer.

A ’Cause I wasn’t sure if he was alive or dead.

You also said in that Record of Interview that at that time you had no means of helping Mr Matskassy.

1. It follows from the jury verdict that they were not satisfied beyond reasonable doubt that the first shot had not killed the deceased.  It also follows that they had not been satisfied that the first shot was fired deliberately by you.  That was based on the evidence of both the pathologist and the forensic scientist called by the Crown at trial.  That conclusion meant that you are not to be regarded as legally responsible for the consequences of the firing of the first shot.  There was also the possibility that, if you did deliberately fire the first shot, the jury could not be satisfied that you were not acting in self-defence.  I am satisfied that for the purposes of sentencing you that it could not be shown that you deliberately caused the death of Mr Matskassy.

1. The jury must, however, have been satisfied that when you fired the second shot you believed that Mr Matskassy was still alive and that you intended to kill him.  The firing of the third shot, although not causally relevant to this crime, showed your determination to make sure that Mr Matskassy was dead.  You made the decision to deprive him of any chance of survival.  In those circumstances your moral culpability is high, and although this is an unusual attempted murder it is nonetheless a reasonably serious example of the crime. 

1. I am satisfied the complete details of what happened on the night have never emerged and are very unlikely to do so.  There is an air of unreality about the case, but you fall to be sentenced on the basis of what the jury finding entailed and nothing else.

1. You are 39 years of age, having been born on 30 August 1976.

1. You are the middle child of three children.  Your early childhood was difficult, living in a household marked by domestic violence.  You suffered from asthma and some kind of hyperactive disorder.  You were lonely at school, as a result of having been picked on and bullied.  You left school after Year 8.  You had been an average student but needed help which was not readily available.  You were at times suspended for truancy and fighting.  You left home at about 15, but returned periodically.

1. You have had two significant relationships, the latter of which was with Michaela Reedyk, to whom I will refer later.

1. You have worked mostly in unskilled positions, although you did complete what was described (in the report tendered on the plea of Mr Ball, a psychologist, to whom I refer later) as a traineeship in panel beating.  Your back injury has prevented you from engaging in physical work.

1. You have a number of prior convictions in both Victoria and Western Australia.  You have convictions for dishonesty, motor car offences, street offences, failing to answer bail, breach of bail, breach of bail conditions, and assault.  The assault conviction was in 2012 and appears to have been in a family context.  I further note that you have a conviction for assault occasioning actual bodily harm.  You have served one term of imprisonment in 1997 for burglary, and you have been placed on a number of community based orders, most of which appear to have been successfully completed.  You were on a community correction order at the time of this offence for burglary, theft, and going equipped to steal.

1. Your criminal history seems to reflect abuse of alcohol, and other illicit substance abuse.

1. Your mother — who gave evidence on the plea — told me that you became addicted to drugs where you were about 18 years of age, when you became associated with a religious cult, and that drugs were a major problem for you until about age 23 (that is, until about 1989).  It appears that at that stage you had been living rough for some years.  At about that time you were struck by a motor car and badly injured your back from which you do not appear to have fully recovered.

1. You went to Tasmania at some stage and that appears to have been a generally positive experience for you.

1. You have a son, Phil, who is now 20 years of age.  He had been in your custody since about the year 2000, although he appears to have spent time with your mother and his own mother.  He appears to have been with you from the age of 12 until your incarceration for this offence.  Your mother regards you as being very protective of your son, and (as I have already observed) Mr Matskassy had some influence over the boys you thought had threatened your son.

1. You had been in a relationship with Ms Reedyk, who was a witness at the trial, for about four years.  She thought that she was pregnant to you at the time of this offence, and she subsequently lost the baby (she says, as a result of the events of that night).  You appear to entertain some doubt about the pregnancy.  In any event, the relationship is at an end.  At some time in 2013, Ms Reedyk and Phil went up to live with your mother in Oberon, New South Wales, because of Phil being in trouble in Melbourne and you worked in Penrith and lived with your mother’s brother.  You all returned to Melbourne at Christmas 2013, so you had been back in Melbourne for at least three months at the time of the offending.

1. You appear to have been a good worker but your opportunities for work in recent times have been limited by your injured back, and you were at the time of the offending on a pension of some kind.

1. I also received a reference from Cheryl Thompson, who is a family friend.  It appears that you will have support from your extended family on release.

1. I received a report from Mr David Ball, a Forensic Psychologist, dated 29 January 2016, which I had marked Exhibit 6D.  There do not appear to be any psychological or psychiatric issues which will affect your sentencing.  It emerged from the report that Mr Ball regarded you as dull with a lowish IQ, and not a good sequential thinker.  That seems to reasonably describe your conduct on the night of the offending.

1. I also received a copy of your prison medical file and a report from your GP, Dr Reza.  I accept that you do suffer from chronic lower back pain, hepatitis C, and restless leg syndrome.  You did suffer from substance abuse problems, which are now in remission.  Mr Ball does not appear to note any psychological or psychiatric issues arising from your lower back pain and injury.

1. I am satisfied that your back condition is such that it will make your term of imprisonment harder than it would have been for other persons, and that will be taken into account in your sentence. 

1. You have done reasonably well in prison and obtained a number of certificates for courses you have completed:

—       Introduction to Anger Management;

—       Communication Skills Program;

—       Conflict Management Program;

—       Introduction to Mood Management Program;

—       Certificate II in Engineering from Kangan TAFE;

—       Certificate II in Kitchen Operation from Kangan TAFE; and

—       Certificate II in Cleaning Operation from Kangan TAFE.

You have been usefully employed during your time in prison.  You also took part in the Combined 250 km Ultra Marathon for White Ribbon Day, and received a certificate of acknowledgement.

1. It was urged on me on the plea that I should mitigate sentence because of your consumption of alcohol.  Your history is marked by offending which either necessarily involved the use of alcohol or might reasonably be supposed to have done so.  Your prior convictions for violence are sparse and there is no evidence to say they were related to alcohol.  You are, however, an experienced drinker who must be taken to know the effects of alcohol on you.  I do not find that your consumption of alcohol aggravates your offending.  I do find that it is not capable of being a matter in mitigation.  It may offer some explanation for your lack of judgment, but it goes no further than that.[1]

   [1]See generally eg R v Groom [1999] 2 VR 159, 164.

1. I have read the victim impact statements from Ms Mercedesz Matskassy, Mr Matskassy’s sister.  I am reminded yet again of the profound effect that crimes such as this have on those who are left behind.

1. You told Mr Ball, ‘[…] I was like a robot.  I started to panic and didn’t know what to do.’  When asked about the subsequent discharge of the firearm, you told Mr Ball, ‘He was twitching and I felt sorry for him.   So I shot twice more.  I wish it never happened’.

1. That is the first time you have acknowledged firing the third shot.

1. It seems that you regret what you did.  I am not satisfied that you are remorseful.  In view of the crime for which you fall to be sentenced and its circumstances that is perhaps not wholly surprising.

1. I think that, because of the matters dealt with by Mr Ball, your prospects of rehabilitation are limited, but you do have the support of your family in a very positive way.

1. The maximum term of imprisonment for attempted murder is 25 years.  I am obliged to have regard to general and specific deterrence and retribution.  You did offer to plead guilty to this offence at the commencement of the trial, and I have taken that into account.

1. With the exception in R v Cengiz,[2] there are no cases similar to this one.  The other sentences drawn to my attention by the prosecutor involved different factual situations and are of limited assistance.

   [2][1998] 3 VR 720.

1. I do not regard this as a case which should attract a lower than usual non-parole period.

1. You are sentenced to be imprisoned for 8 years and I fix a non-parole period of 5 years before you are eligible for parole. 

1. I declare that you have served 709 days, not including today, by way of pre-sentence detention and I order that this declaration and its details be entered in the record of the Court.