R v Enright
[2001] VSC 223
•29 June 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No.1409 of 2001
| THE QUEEN |
| v |
| ALLAN WILLIAM ENRIGHT STEVEN WHITFORD AND CARLY ROWE |
---
JUDGE: | Bongiorno J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June 2001 | |
DATE OF SENTENCE: | 29 June 2001 | |
CASE MAY BE CITED AS: | R v Enright & Ors. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 223 | |
---
Criminal Law – Sentencing – Intentionally cause serious injury – Prior convictions for violence - Serious violent offender– 5 ½ /3 ½ ; No prior convictions – Young offender – Serious offence – 3 ½/1 ½; Intentionally cause injury – Young offender – No prior convictions – CBO without conviction.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. B. Kayser | Solicitors for Public Prosecutions |
| For the Accused | ||
Enright: Rowe: | Mr. L. Carter Mr. G. Lyon Mr. S. Waites | Jones & Dowling Causovski Piesse Halikopoulos Roberston Ramsay & Waites |
HIS HONOUR:
Allan William Enright and Steven Whitford you have each pleaded guilty to one count of intentionally causing serious injury to Dennis Barber. Carly Rowe, you have pleaded guilty to intentionally causing injury to Dennis Barber. It is now my duty to pass sentence upon the three of you according to law.
The incident which brings you before the Court was, on its face, a reasonably straight forward, vicious and life threatening attack on Dennis Barber who was walking down a public street. However, if the pleas made by your counsel are to be accepted there was a much more complex background to these offences than appears on a reading of the prosecution witness statements. Although it is not necessary for me to conduct an exhaustive examination of the background to the events of 13 August 2000 it is necessary to at least acknowledge that the attack which you perpetrated on Barber appeared not to have been a random assault carried out on a citizen for no apparent reason.
I have found it extremely difficult to make any rational sense of the animosity which existed between Barber and the prisoner, Enright so as to give rise to the assault to which you have all now pleaded guilty. However, it appears to have arisen out of a belief that a friend of Barber's, one Jason Hope, had, on some earlier occasion or occasions sexually molested Carly Rowe. It is said that you Enright, who now have a romantic attachment to Rowe, discovered the earlier molestation of her by Hope a short time before the events which bring the three of you before this court occurred.
Considerable uncertainty also hangs over the actual conduct of the victim Barber on the night the assault took place. You would each have it that his presence in Elm Street, Preston at the relevant time was for some nefarious purpose related to the animosity between Hope and Enright. Barber's explanation for being there is entirely innocent. He says he was merely passing along Elm Street on his way to visit friends in a nearby area. However it is not without significance that he appears to have given different explanations, all innocent, of his presence in Elm Street at different times and that a partial eye witness to the assault which you perpetrated, a boy called Tim Curtin, deposed to Barber having expressed animosity towards Enright in a tirade of abuse as he walked along the street. If, as you assert, he had the intention of inflicting physical harm on you, Enright, one thing is clear and that is that he was unarmed whereas your attack upon him involved a loaded gun and a knife.
Had this matter proceeded to trial the Crown case, as I perceive it, would have been that the altercation was somehow related to a breakdown in a romantic attachment which had hitherto existed (and now apparently exists again) between Jason Hope and Carly Rowe's sister, Marsha.
In the final analysis it seems to me to matter very little what the remote causes of the crime which you have each committed were. Your pleas of guilty are an acknowledgment by each of you that you deliberately assaulted Dennis Barber on 13 August 2000 inflicting upon him serious injury and injury respectively. Whatever might be the explanation for the altercation in which those assaults took place, such explanation provides no justification whatsoever for the crimes for which you are about to be sentenced.
On 13 August 2000 at about 8.30 in the evening Dennis Barber was walking along Elm Street, Preston in the vicinity of number 19 when you, Enright, armed with a loaded sawn off shot gun, confronted him. As I have said, Barber was unarmed.
Words were exchanged and a struggle ensued in which Barber removed the firearm and struck you over the head with it. It was his belief that just before he did so you were attempting to release the safety catch. After he did so he threw the shot gun some distance away where, upon its striking the ground, it discharged. Fortunately, that discharge did not strike anyone.
At about the same time you, Whitford, who had apparently been nearby and armed with a 30 centimetre long knife, stabbed Barber a number of times in the back. You then passed the knife to Enright who began stabbing Barber with it to the front of his body whilst he lay on the ground. Barber managed to push you, Enright, off him and attempted to regain his feet. As he did so you, stabbed him in the chest, puncturing a lung and causing a pneumothorax. As he sought to run away you stabbed him in the thigh, severing an artery which caused a considerable amount of bleeding. Finally, as he did escape you stabbed him a number of times in the back.
In total Barber was stabbed 11 times. All of the wounds were about three centimetres long. One of them, to the right lower back, was 10 to 12 centimetres deep. Fortunately it remained within muscle and did not damage any vital organ. Had it done so he may well have died.
Whilst Barber was on the ground you, Rowe, kicked him thereby causing him further injury.
After he made his escape Barber ran to a house occupied by friends at the bottom end of Elm Street near Greenbelt Avenue and was eventually taken by ambulance to hospital where he underwent surgery. A victim impact statement filed by him asserts that he has been left with some permanent disability as a result of your attack on him, but no medical or other supporting evidence was put before the Court so that I make no finding as to his injuries other than as deposed to by the surgeon, Mr Read, in his witness statement.
After Barber escaped you, Enright, returned to your home with the shot gun and gave it to the 13 year old boy, Curtis, who had been an eye witness to some of the events already described. In a statement made to police on 1 September 2000 Curtis said that you, Enright, gave him the gun and told him to run with it. When he asked; "Where?" he said that you replied "anywhere". He said he then subsequently gave it to Marsha Rowe who took it away. Apparently its current whereabouts are unknown to police as are the whereabouts of the knife used by you and Whitford to stab Barber.
On the evening of 15 August 2000 you, Enright, voluntarily attended the Preston police station and participated in a record of interview in which you declined to say anything about your part in the assault on Barber. You were charged with attempted murder and remanded in custody where you have remained ever since.
You, Rowe, were arrested at an address in Reservoir shortly prior to Enright's giving himself up at Preston police station. You likewise participated in a record of interview in which you told the police nothing of your involvement in this incident. You were charged and bailed the following day.
You, Whitford, were first interviewed by police in relation to this matter on 28 August 2000 when, in a record of interview, you denied your involvement in this event and denied that you knew Enright or Rowe. You were interviewed again on 4 September 2000 at which time you provided the police with no further information. You were charged and subsequently bailed but your bail was revoked after the committal proceeding in this case on 23 January 2001.
Although each of you was committed for trial on a charge of attempted murder, in April this year a plea was negotiated between your legal advisers and the Crown as a result of which the presentment to which you have now pleaded guilty was filed. You are each entitled to the statutory benefit accruing to your having pleaded guilty to the offence upon which you were presented after committal but before trial. I have taken that plea into account in each of your cases in arriving at the sentences I am about to impose.
I turn now to consider the personal circumstances of each of you relevant to the sentencing process.
Allan William Enright
Allan William Enright you are 24 years of age having been born on 7 June 1977. You have admitted a remarkable number of prior convictions having regard to your relative youth. Since 15 May 1992 when you first appeared before the Children's Court shortly prior to your fifteenth birthday, on a charge of resisting a member of the police force in the execution of his duty, you have appeared in court on some 30 occasions, many of them for offences involving violence.
In 1992 you were before the Children's Court on four occasions; two of them for offences involving violence.
In 1993 you were before the Children's Court on five occasions. On one of those occasions you were charged with offences involving violence.
In 1994 you appeared before the Children's Court on four occasions. On the first of those occasions, on 9 February, you faced over 50 charges including charges alleging offences involving violence and a charge of causing wilful damage. On 30 March 1994 you were charged with the serious offence of recklessly causing serious injury. On 11 November in the same year you were before the Children's Court again on charges including intentionally or recklessly causing injury.
In 1995 you were before the Children's Court on one occasion on a charge of handling stolen goods. You were before the Magistrates' Court on two occasions one of which included offences involving violence.
In 1996 you were before the Magistrates' Court on five occasions; two of which were for offences involving violence or the causing of wilful damage.
In 1997 you were before the Magistrates' Court on three occasions. On one of those occasions you were convicted of offences involving violence and being in possession of a regulated weapon.
In 1998 you were before the Magistrates' Court on only one occasion to face a very large number of charges of dishonesty and possession of drugs but including one charge causing wilful damage.
In 1999 you appeared before the Magistrates' Court on three occasions. Whilst none of those was for any offence involving violence to a person you were convicted of intentionally destroying property.
Last year you appeared before the County Court to face charges of recklessly causing serious injury and assault. You also appeared before the Magistrates' Court on other charges not involving violence.
As a result of your prior criminal history you have spent time in youth training centres and, more recently, in gaol. On other occasions you have been the subject of intensive correction orders and, most recently, Her Honour Judge King in the County Court mercifully released you on a community based order in respect of the serious charge of recklessly causing serious injury. You have breached that order by the commission of this offence. In any event you were arrested before you could properly commence complying with its terms.
The fact that you were convicted at the Kyneton Magistrates Court on 1 February 1995 and 8 January 1997 of offences defined by law as serious violent offences and sentenced to terms of imprisonment in each case means that you now face sentence as a serious violent offender within the meaning of the Sentencing Act 1991. This has the consequence that this Court must regard the protection of the community from you as the principal purpose for which the sentence is imposed. It may even impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. However I am not satisfied in this case, having regard to the matters to which I will refer, that there is any necessity to depart from ordinary sentencing principles whilst observing the necessity to regard the protection of the public as the principal purpose for which the sentence is imposed.
I have read a number of documents outlining your personal history. They are a report from Mr Bernard J Healey, psychologist, dated 17 June 2001, a court report to the Melbourne Children's Court by Community Services Victoria dated 30 October 1990, a report from Community Correctional Services dated 28 April 2000 and a report from Community Correctional Services dated 21 February 2001. I have read testimonials on your behalf from Ms Marg Hayes, the Chaplaincy Coordinator at Port Phillip Prison, Mr R Bresnahan and Mr G Weir. I have also read your own four page document entitled "The Life Of Allan".
Mr Healey's report sets out your personal history. It is aptly described by the word "appalling". Your parents were drug addicted offenders and the only stability in your early life appeared to come from your grandparents who unfortunately died when you were in mid adolescence. Your childhood consisted of intermittent admissions to public institutions where, undoubtedly, your instincts for survival were tested to the limit and inappropriate behaviour by yourself and others was the norm.
You commenced drug taking at the age of 12, shortly after you became a State ward. You claim incidents of sexual abuse by your father when you were 12 or 13 whilst your mother was in prison and an earlier incident when you were about 8 involving a female attendant at a rehabilitation facility whilst your mother was receiving residential care for her drug addiction.
At 15 you began using heroin intravenously and taking benzodiazepines. You and your mother were using up to 2.5 grams of heroin daily which habit you and she were supporting by burglaries and other offences of dishonesty.
You had your first experience of an adult prison in 1995 when you were sentenced to three months imprisonment for, among other things, assault by kicking, intentionally or recklessly causing injury and making a threat to kill. These events apparently arose out of an incident at the Malmsbury Youth Training Centre in which you and another inmate were engaged in a fight.
Mr Healey accepts that your first experience of an adult prison was traumatic but that you began to learn to cope with the system by being "more devious and manipulative" thus reinforcing your maladaptive lifestyle. You were apparently taught and protected by associates of your father whom you met in prison.
Explanations, if not excuses are put forward on your behalf concerning the more serious assaults of which you have been convicted in the past, particularly those involving knives.
The first of those involved an altercation in which you stabbed a man who alleged that you had stolen some property. The second, it is said, involved the opportunistic use of a knife found on hotel premises which you were burgling and the third involved a provoked attack with a sharp object following an altercation over a car parking space at a shopping centre. With respect to this incident I have read extracts of a transcript of the hearing before Her Honour Judge King in which she describes the incident as "two men behaving badly over a car park". The fact that the assault was apparently provoked by the behaviour of the other driver does not render it less of an assault even if it might explain its occurrence.
These explanations, although perhaps helpful, are no more than explanations. They neither justify nor excuse such behaviour.
Mr Healey considers your I.Q. to be within a normal range but, somewhat disturbingly, offers the opinion that personality testing revealed, among other things, a sociopathic trend. However, he also says that you have come to appreciate the need to change your behaviour and to avoid the pitfalls of relapsing into patterns of past conduct. It is to be hoped for your sake and society's that he is right.
It appears that since about 1998 you have been in a romantic relationship with your co-accused Carly Rowe. It was probably that relationship which led her to assist you in your attack on Barber and thus resulted in her standing in the dock with you today. Ms Rowe is very young but has demonstrated a capacity to live her life in a way free of anti-social behaviour and with some purpose and direction. She has apparently supported you over the period you have been on remand and, should she continue to offer that support, I have no doubt she will play a part in your ultimate rehabilitation in the event that you decide to radically alter your lifestyle when you are released from prison.
A sentencing judge has, of necessity, but a fleeting insight into the lives of those he must sentence. He is assisted by professional reports containing the opinions of those whose training and experience enables them to offer predictions, but certainly not guarantees of future behaviour. However, it is impossible for any sentencing judge to understand fully why any particular criminal behaviour was engaged in; particularly the sort of criminal behaviour with which I must deal in this case. A person's background, psychological profile and past conduct might give some clue as to why a particular crime was committed but in the end any crime involving deliberate willed behaviour is engaged in by the criminal because he decided to do so. No matter how deplorable your upbringing, no matter how deprived your physical circumstances might have been and no matter how bereft of love and affection from other human beings you have been over your lifetime you committed the crime to which you have now pleaded guilty because you chose to do so. It is in that context that you must be sentenced.
Although you are not quite a young offender and have been given many many opportunities by the courts in the past I must still consider the issue of rehabilitation in your case when considering the sentence I must impose. Doubtless every sentencing magistrate who has dealt with you over the last nine years has grappled with the same problem. To date any prediction that you would achieve rehabilitation has been sadly astray. Nevertheless the picture is not completely bleak.
Mr Healey considers that you will achieve reasonable mastery over those deficiencies in your personality which have led you to engage in the anti-social behaviour demonstrated by your long list of prior convictions. Other matters which go to the issue of rehabilitation include your preparedness to undertake counselling in relation to your inappropriate displays of anger and your interest in acquiring skills whilst in prison. It is to be hoped that you persist with these activities. It should also be acknowledged that you were able to produce two testimonials from citizens prepared to support your efforts at changing your life and attitudes. Overall you must be considered to have reasonable prospects of rehabilitation but only if and when you decide to take responsibility for your own actions and cease attempting to put the blame for each of your displays of anti-social, perhaps even sociopathic, behaviour on other people whether it be on your inadequate parents, the inadequate social welfare system by which you were brought up or the inadequate criminal justice system which has had to deal with you over the last nine years or so. In this regard I must mention that your letter to the authorities at Port Phillip Prison complaining about the lack of an anger management course at that establishment and your statement to the Court entitled "The Life of Allan" each display a lack of willingness to take personal responsibility for behaviour which can only be changed by a serious application of the will to do so. The latter document also contains elements of the manipulative behaviour commented upon by Mr Healey in his report.
The sentence which you receive for this crime must include elements of punishment, general deterrence, specific deterrence and denunciation by the Court of the type of conduct in which you engaged. In particular there is a necessity to include an element of community protection in the sentence which you must serve. Indeed, as I have noted, it is the principal consideration. Even allowing for the mitigating factors applicable in your case it is necessary for me to impose a substantial custodial sentence if conduct such as you engaged in is to be dealt with appropriately.
Steven Whitford
You are 20 years of age having been born on 20 April 1981. You have only one prior conviction which I regard as irrelevant for present purposes. It did not involve violence and arose out of an incident almost six years ago.
Your part in the commission of the offence to which you have now pleaded guilty was somewhat less than that of Enright but was still very serious. Not only did you provide Enright with the knife with which he stabbed Barber a number of times but you yourself stabbed him, four or five times. Thus you were not only an assailant but also provided Enright with the means to inflict the injuries, including those that may have left residual disabilities, on Barber. You assisted Enright when you knew that his primary weapon in this assault was a loaded shot gun.
Your social history, as recounted to psychologist, Ms Nicki Lefkovits, is described as "difficult". You apparently displayed opposition to authority from a relatively early age, perhaps derived from an unfortunate relationship with your step father who drank to excess and who was to some indeterminate degree violent.
During your childhood you changed homes and schools frequently and eventually went to live with your grandmother, although in more recent times you have lived with various friends and interstate. There have been conflicts between you and some of those with whom you came in contact. Ms Lefkovits instances your having to cease fruit picking in Mildura because you "fell out" with the orchard's owner.
You appear to have had only one romantic relationship which lasted for approximately ten months and is no longer current; your partner having not supported you during your time on remand for this offence.
Your education reached only the middle years of secondary school but Ms Lefkovits considers that you are sufficiently bright and insightful to learn from your mistakes. It is certainly not too late for your lack of education to be remedied if you have the will to do so.
Although you worked in menial jobs after leaving school you were unemployed at the time of this offence and, of course, have remained so. You have no particular employment skills.
So far as drugs and alcohol are concerned it would appear that you have been a regular user of marijuana with few periods of abstinence. You describe this as having occurred "out of boredom". You have also taken amphetamines, ecstasy and prescription medication but deny having used drugs intravenously.
Ms Lefkovits makes a number of recommendations in her report which relate to your taking steps to resolve unresolved issues arising from your background and your associated anger. Again, like Enright, you must take responsibility for your own actions and realise that if you commit a deliberate criminal act then you do so because you want to do so. Such deprivations as you have suffered may provide an explanation. They do not provide an excuse.
The material contained in Ms Lefkovits' report gives one considerable optimism that you will be able to overcome the tendencies which you gave vent to in your attack on Barber and become a useful and valued member of society. Having regard to your age rehabilitation is a very significant if not the most significant factor in determining a sentence in your case. It is a very serious matter to impose a gaol sentence on a young offender who has never been sentenced to imprisonment before. However the sentence which is imposed must also address issues of punishment, general and specific deterrence, the denunciation by the Court of the type of conduct in which you engaged and, to some minor extent at least, protection of the community.
Your counsel has urged that your plea of guilty should be seen as a realisation by you of the enormity of the crime which you have committed and an expression of your remorse. Having regard to the fact that the plea was negotiated I find it somewhat difficult to accept this submission in its entirety. However I am prepared to act on the basis that it does demonstrate at least an acceptance that what you did was wrong and a desire by you to face up to the consequences of that action.
I am unable to accede to your counsel's submission that in this case this crime could be dealt with by the imposition of a suspended sentence notwithstanding your other mitigating circumstances. You will be sentenced to a term of imprisonment requiring immediate incarceration but that term will be somewhat shorter than it would have been had the numerous mitigating factors applicable to your case not been present.
Carly Rowe
Carly Rowe you are 18 years of age having been born on 24 May 1983. You have no prior convictions and your participation in the crime to which you have pleaded guilty was considerably less than that of your co-accused, Enright and Whitford. Indeed there does not appear to be any reliable evidence of the injury you inflicted upon Barber when you kicked him but of course, having regard to the fact that your plea was negotiated you have escaped being implicated with Enright and Whitford in the very serious offence to which they have pleaded guilty.
Your counsel has confirmed that you regard yourself as being in a relationship with Allan Enright which commenced in about 1998 and that you have supported him whilst he has been on remand. You intend to continue to persist with that relationship whilst he serves his sentence and, presumably, after he is released.
So far as your background is concerned it appears to have been unremarkable. I was told little of your childhood other than that you completed Year 11 at school and attempted Year 12. In particular I heard evidence from a Mr Lindsay Round as to the assistance you have received from an organisation called Job Placement Employment and Training which has indirectly led to your having a part time job in a retail shop in Broadmeadows.
Your counsel has urged that I should not proceed to a conviction in your case and that I should deal with you by way of a Community Based Order.
Having regard to your age, to your prior blameless record and to your part in this particular assault I do not consider that it would be appropriate that you be sentenced to a term of imprisonment despite the fact that the maximum penalty for the offence to which you have pleaded guilty is 10 years.
I am prepared to accede to your counsel's submission that you be placed on a Community Based Order on the usual term that you agree to comply with that order. The period of the order will be two years. Although I have considerably more difficulty with your counsel's submission as to your not being convicted I have decided, after much consideration, to accede to that submission so that you may continue to enjoy a conviction free record. I have done this largely because of your background, your youth and the less serious nature of your participation in this offence.
The conditions upon which I am prepared to release you upon a Community Based Order are:-
(a)that you do not commit another offence punishable on conviction by imprisonment for another two years;
(b)that you report to the Hume Community Correction Centre at Broadmeadows within two clear working days after today;
(c)that you report to and receive visits from a Community Corrections Officer;
(d)that you notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days of such change;
(e)that you do not leave Victoria except with the permission of an officer of the specified Community Corrections Centre;
(f)that you obey all lawful instructions and directions of a Community Corrections Officer.
The only program condition of the Community Based Order upon which you will be released is that you perform 250 hours of unpaid community work over the two years of the order as directed by the regional manager of the specified Community Corrections Centre.
Sentence Enright
Allan William Enright it is the sentence of the Court that you be imprisoned for a period of five years and six months and it is further ordered that you serve a minimum of three years and six months before being eligible for parole. I declare the period of 320 days as the period already served under this sentence and I direct that this declaration and its details be entered in the records of the Court. I further direct that the fact that you have been sentenced as a serious offender within the meaning of the Sentencing Act 1991 be entered in the records of the Court in respect of the offence for which you have now been sentenced.
Sentence: Whitford
Steven Whitford the sentence of the Court is that you be imprisoned for three years and six months and it is further ordered that you serve a minimum of one year and six months before being eligible for parole. I declare the period of 219 days as the period already served under this sentence and I direct that this declaration and its details be entered in the records of the Court.
0
0
0