R v Kilgower
[2002] VSC 194
•23 May 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1517of 2001
| THE QUEEN |
| v |
| GLENN RAYMOND KILGOWER |
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JUDGE: | FLATMAN J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 March 2002 | |
DATE OF SENTENCE: | 23 May 2002 | |
CASE MAY BE CITED AS: | R v Kilgower | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 194 | |
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CRIMINAL LAW – Sentence - Intentionally Cause Serious Injury - Trafficking in a Drug of Dependence, namely Cannabis
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr R. Backwell | Victoria Legal Aid |
HIS HONOUR:
Glenn Raymond Kilgower, on 5 February 2002, you were presented in this court on one charge of attempted murder and one charge of intentionally causing serious injury. The alleged date of the offence was 9 March 2001. You pleaded not guilty to Count 1, attempted murder, but guilty to Count 2. The jury were put in charge of Count 1.
On 15 March 2002, the jury indicated that they were unable to reach a verdict on that count and were discharged.
The Crown then indicated that they would accept a plea of guilty to the second count in full satisfaction of the presentment. You were re-arraigned and pleaded guilty to causing serious injury intentionally and admitted prior convictions. Your plea was heard on 25 March 2002.
The circumstances surrounding the commission of this crime have therefore been canvassed in the course of the trial as contained in the depositional material but I propose to refer to them so that the context in which the crime took place can be properly understood.
On the evening of 8 March 2001, you went to the Esplanade Hotel in The Esplanade, St Kilda, along with friends Justin Wallen and Zoe Webster. You met two other persons, Robert Jordan and David Hughes. You later left to attend the Prince of Wales Hotel on the corner of Fitzroy and Acland Streets, St Kilda. At about 1.23 a.m. Robert Jordan walked into the hotel carrying a bag which was placed under a counter to the left of the front door. At about 1.31 a.m. you left the hotel after picking up the bag and carrying it outside.
Having left the hotel, you turned west along Fitzroy Street and you then headed south down Acland Street. After a confrontation with two males, David Nelson and Grant Siedle, you continued to walk south in Acland Street. The confrontation involved provocative conduct by you in which you said things like, "Don't push me. I've got a gun".
About this time the victim in this matter, John Jackson, and his two brothers, Colin Jackson and Peter Jackson, arrived in the area after having been involved during the afternoon and evening in significant social activity involving the consumption of alcohol. While you were challenging the world in general, John Jackson said, "This cunt needs a clip" and he proceeded to follow you up Acland Street, by walking along the roadway. As he (Mr John Jackson) approached, you warned him that you would blow his head off and after your being warned that he was coming up behind you, you produced the shotgun and fired directly at John Jackson. This shot was fired when you were approximately between one to one and a half metres away from him. You shot Mr John Jackson in the left upper chest. The words of the prosecutor's opening, are apposite here –
“by virtue of surgical intervention and, you might think, the grace of God and a bit of luck, Mr Jackson survived”.
You then ran to your car where it had been parked in Jackson Street, St Kilda just around the corner from the shooting. On the way to that car you threatened a security guard, Darren Cardy, with the gun. When you went back to your house, the depositional material discloses that you slashed one of your legs to concoct a self-defence scenario in case you were apprehended by the police.
After the police had received information, they placed telephone intercepts under warrants both at your mother's address and where you were then residing at 12 Drummond Close, Frankston. As a result of those intercepts, a number of conversations came to light, including discussions concerning aspects of the shooting and related media reports regarding the shooting. On 11 April 2001, you were interviewed by police in relation to this matter. You said that you had bought the shotgun from an unknown male for $500 at the Sundowner Hotel in Seaford. You said you had bought the gun for protection and in case you wanted to "knock" yourself. You described the gun as a combination shotgun and a .22 rifle barrel that was capable of being dismantled. You said that you took the gun to St Kilda that night because you had arranged to sell it to someone on the night of the incident. This person did not turn up to meet you.
John Jackson, the victim in this matter, was admitted to hospital after being shot in the axilla and he suffered severe damage to his left chest wall, lung and brachial plexus. His current condition is set out in a medical report from Dr John McQwalter of the West Wallsend Medical Centre. This report was dated 22 March 2002. In broad terms, it is quite clear that John Jackson has been left with severe residual disabilities and he is unlikely to be able to return to skilled work that requires normal feeling, strength and movement of his left arm and hand. Perhaps, most significantly, he still has a number of shotgun pellets in his body which, according to the evidence of Mr Atkins, the surgeon, might come to the surface in the future in various adverse ways.
Turning to your individual circumstances, you have a number of prior convictions arising from 10 court appearances, commencing on 16 June 1994 at the Frankston Children’s Court up until 9 June 2000 at the Magistrates' Court at Frankston. I note that many of these prior convictions relate to theft, burglary, being found on premises without lawful excuse, drug offences and one offence of carrying a dangerous article.
Your Counsel has described your history since leaving school as directionless. He referred to it as "a history of wasted time, wasted opportunity, drug use, alcohol abuse, boredom, unemployment and generally not getting on with it." This is confirmed strongly in the report from Ian Joblin dated 21 March 2002 in which, after reciting what can only be described as a dismal education and employment record, he indicated a concerning history of alcohol and drug abuse involving drugs such as cannabis, amphetamines and some use of Ecstasy and LSD.
Mr Joblin raised further concerns in relation to your prognosis in that he was concerned from a psychological perspective as to whether or not you were developing a personality disorder. He noted that you had a history of instability in virtually every area of your life apart from your relationship with your girlfriend. His position is perhaps best summed up in the last paragraph of the report:
"I am of the opinion that Mr Kilgower has a reasonable intelligence. He wants to get out and go to live with his mother and then live with girlfriend. He hopes to be able to find work and stabilise with her. In my opinion, however, Mr Kilgower needs to develop a more circumspect attitude to drug and alcohol use and his overall lifestyle. He must ensure that the lifestyle he led around the time of these offences does not continue. Indeed, if that does not change, I could not offer an optimistic prognosis. It is difficult to determine how he might best make such a change. However, he reported that his time in custody has been of some deterrent value for him and one notes that this is his first period in custody. He is aware that this is wasting his life and he does not want to do that. Hopefully that will assist in developing a conscience which will provide enough deterrence so that he can reject the lifestyle he was leading up to the time of the offences. Unless that occurs the prognosis must be guarded."
I note that you have taken positive steps whilst in custody to avail yourself of educational opportunities. You have done an Occupation Health & Safety subject, basic computer skills and art classes. You have also obtained a fork-lift vehicle licence and a welding certificate. Your Counsel instructs me that whilst in custody you have put on some nineteen kilograms in weight and he argues that that is some indication that you have stopped taking drugs.
Although you have the prior convictions that I have previously mentioned, this is in fact your first custodial sentence.
You are a relatively youthful offender. You were 23 years of age at the time of these offences and you are now aged 24 years.
You offered to plead guilty to this count at the earliest possible opportunity and in fact did so in front of the jury.
You do have support from your mother and girlfriend. To a lesser extent you have support and some contact with your father and brother.
Whilst all this represents some opportunity for a turning point in your life, I am also concerned with Mr Joblin's remarks about your possible personality disorder and certainly the guarded prognosis for your future.
I turn now to the broader sentencing considerations. The maximum term of imprisonment in relation to intentionally cause serious injury is 20 years imprisonment. There is no doubt, in terms of gravity and seriousness, that this offence must be regarded by the courts as a serious offence. As I indicated in the course of the plea, it is a brazen, senseless shooting in a street in Melbourne where people ought to be able to go about their affairs with confidence and safety. It calls for strong denunciation and due weight to be given to general deterrence. A modern civilised community cannot tolerate such brazen, irrational and violent behaviour.
Moreover, given the report from Mr Joblin, there are real issues in relation to specific deterrence that apply to the circumstances of this case.
The Victim Impact Statement indicates the degree of trauma that you have occasioned your victim. Apart from its serious consequences for his work opportunity, it will continue to affect his daily social and family life. The physical consequences have indeed been very serious and he will have a reduced quality of life for the rest of his life. In my view, the degree of provocation by him was minimal and indeed, the circumstances disclose you to have been in an alcohol and drug induced state seeking to provoke anyone that you encountered to a situation of conflict. Moreover, I am satisfied that you have no real insight into the significant harm you have caused the victim in this case nor do you have any real remorse for what you have done. I am not simply raising this as an aggravating feature of the crime but rather because it is a problem that undermines your prospects of rehabilitation. I note Mr Joblin’s remarks about conscience in that regard. It is a problem which is in your best interests to address.
It was also put that I should impose a longer than usual non-parole period because of your circumstances. Applying the principles set out in Morgan v Morgan (1980) 7 ACR 146, at 155, Power (1974) 131 CLR 623, and Bugmy (1990) 1690 CLR 525, my task in fixing the non-parole period requires consideration of what is the minimum custodial period that is needed to serve the objectives of the sentence. In the circumstances, I do not consider that this is a case where the approach suggested by your Counsel should be followed.
Conclusion on the presentment involving intentionally causing serious injury.
In the end, I must balance the principles of sentencing enunciated in the Sentencing Act including punishment, denunciation, specific and general deterrence and rehabilitation.
In relation to the presentment containing the count of intentionally cause serious injury, you are sentenced to be imprisoned for a term of six and a half years. I fix a minimum period of four and a half years imprisonment before you become eligible for parole.
Further, I declare that the period to be reckoned as already served under the sentence imposed is 407 days, inclusive of today's date. I direct that it be noted in the records of the Court the fact that such declaration is made and its details.
Presentment involving trafficking in a drug of dependence namely cannabis.
At the time of this plea, the Crown filed another presentment containing one count of trafficking in a drug of dependence, namely cannabis.. You pleaded guilty. to this count on that presentment.
During your interview you admitted to police that between the shooting and the day of your arrest you had bought between three to ten ounces of cannabis in bags with the intention of selling the cannabis and also using it yourself and keeping any profits for yourself. It was put by your Counsel that this was an exercise in supporting your habit rather than trafficking in any profitable sense. Your Counsel also argued that given the real issues you face with your first experience of incarceration any sentence ought to be effectively concurrent. I agree.
The maximum term of imprisonment applicable to the drug trafficking count is 15 years. In relation to the presentment alleging trafficking in cannabis, you are sentenced to a term of imprisonment of 6 months. By operation of law, that sentence will be concurrent with the sentence that you will undergo on the first presentment.
General Orders
I order, pursuant to s.78(1) of the Confiscation Act 1997 the forfeiture to the State of the property referred to in the schedule appended to the Disposal Order filed with the Court, namely one wad, three pieces of shot, one Tikka combination shotgun and .22 barrel and one empty “Winchester” shotgun ammunition box. I direct that these items be placed in the custody of the Chief Commissioner of Police and be held by her until 28 days from this date or the conclusion of any appeal proceedings and then to be destroyed by her.
Further, pursuant to s.464ZF(2) of the Crimes Act 1958 I order that you undergo a forensic procedure for the taking of blood and/or saliva samples in accordance with sub‑division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for the placement on the data base. Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances the making of the order is justified having regard to the seriousness of the circumstances of the offending, the fact that the order is not opposed and the fact that the granting of the order is in the public interest.
I am also required to inform you that in undergoing a forensic procedure for the taking of a blood or saliva sample, a member of the Police Force may, if necessary, use reasonable force to enable the procedure to be conducted.
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