R v McCoy
[2018] VSC 658
•2 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0012
| THE QUEEN | |
| v | |
| ROBERT McCOY | Accused |
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JUDGE: | TAYLOR J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 October 2018 |
DATE OF JUDGMENT: | 2 November 2018 |
CASE MAY BE CITED AS: | R v McCoy |
MEDIUM NEUTRAL CITATION: | [2018] VSC 658 |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Conduct endangering serious injury – Prohibited person possessing a firearm – Possessing a drug of dependence – Shotgun discharged at close range into driver’s side of vehicle carrying two passengers – General Deterrence – Denunciation – Remorse – Reasonable prospects for rehabilitation – Nash v The Queen (2013) 40 VR 134 and Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson QC | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J Desmond | Giorgianni & Liang Lawyers |
HER HONOUR:
Robert McCoy, you have pleaded guilty to four charges.
Two arise from an incident on 19 May 2017 in which you, a front passenger in one car, used a shotgun to fire a single cartridge towards the driver’s area of another, adjacent vehicle from a distance of about 75 cm. Those two charges are intentionally causing serious injury to the driver of that vehicle, Stephen Dobbyn, and conduct endangering serious injury with respect to the passenger in that vehicle, Belal Hablas.
The maximum penalties for these two offences are 20 years’ imprisonment[1] and five years’ imprisonment[2] respectively.
[1]Crimes Act 1958 (Vic) (‘Crimes Act’), s 16.
[2] Crimes Act, s 23.
The other two charges of being a prohibited person possessing a firearm, and possessing a drug of dependence, arise from items seized during the execution of search warrants at your home on 23 May 2017. The maximum penalties for these two offences are 10 years imprisonment or 1200 penalty units[3] and 1 year imprisonment or 30 penalty units, respectively.[4]
[3]Firearms Act 1996 (Vic), s 5(1).
[4]Drugs, Poisons and Controlled Substances Act 1981 (Vic), 73(1) (being possession for a non-trafficking purpose).
Summary of offending
You are an associate of Billal El-Haouli, Belal Hablas, Mohammad Haddara and Kidus Gerbu. You bear some animus towards Mr Hablas dating from 2016, consequent upon your belief that he stole your vehicle.
Between 17 and 18 May 2017 the mobile telephone service used by you received six missed calls from the mobile telephone service used by Mr Haddara. At 3.36am on 18 May 2017 you received a text message from Mr Haddara in the following terms: ‘don’t ignore my phone call you fucking rat, get bill to fucking call me now before I come and kick your door down Aussie skunks’. At 9.34am that day a short telephone call was made from your number to that of Mr Haddara.
About half an hour later you left your home address, in company with your son, driving a VW Golf. You later told police that you attended at Mr El-Haouli’s address to collect a Mazda RX-8 which Mr El-Haouli was preparing for a roadworthy certificate. But, you said, the vehicle was not returned to you. Rather, Messrs Haddara, Hablas and Gerbu, along with other unknown men, there assaulted you. Weapons were used, including a crowbar and a pistol. The latter was held to your head.
CCTV footage of the driveway at your home address show that you returned home at 11.54am sporting a bandage on your right elbow. It then depicts you, at 12.19pm, returning to the VW Golf carrying a sawn-off shotgun, which you placed in the car before departing. You again returned at 1.29pm, still in possession of the shotgun.
Shortly thereafter you contacted the local police station to report the Mazda RX-8 stolen. You were less than forthcoming about the circumstances of what you said had occurred. You stated that you had taken the vehicle to Mr El-Haouli’s home address for a roadworthy certificate and he had then refused to return it. You said that there had been an altercation with Mr El-Haouli, but declined to elaborate.
Early on the following day—at 5.59am on 19 May 2017—the CCTV footage at your home shows you walking to the front of your property carrying the shotgun. You then pointed it directly at the camera before walking back inside.
At 9.27am you sent a Facebook message to Mr El-Haouli in the following terms: ‘some cunt is going to die from yesterday remember you cuts should have killed me when you had thevchance [sic].’
You did not leave your address again until 11.20pm that evening.
Meanwhile, Stephen Dobbyn—a man entirely unknown to you —drove his Honda Prelude to Mr El-Haouli’s home at about 7.30pm to collect Mr Hablas. Mr Dobbyn and Mr Hablas were friends and spent the next few hours together at shopping centres and a residential address. Mr Dobbyn, driving, with Mr Hablas in the front passenger seat, returned to the street in which Mr El-Haouli lived at about 11.50pm. He parked along the kerb directly opposite Mr El-Haouli’s house. Both men remained in the vehicle. Each lit a cigarette. The driver’s window was down.
Shortly thereafter a Toyota Camry Sedan, in which you were the front passenger, and in which were three to four other occupants, entered the street and drove past Mr Dobbyn’s Honda Prelude, slowly. The Toyota Camry then reversed, stopping next to the Honda Prelude. The two vehicles were then less than a metre apart. The front passenger window of the Toyota was just forward of the driver’s window of the Honda.
You wound down the passenger window and said ‘is Bill here?’ Mr Hablas replied ‘we don’t know we just pulled up.’ You and Mr Hablas each recognised the other’s voice and said, nearly simultaneously, ‘who are you?’
Mr Hablas, sensing something was wrong, put the gear shift into reverse and whispered to Mr Dobbyn to reverse. Mr Dobbyn did not hear that whispered instruction, but did feel Mr Hablas tapping his leg.
Mr Hablas and Mr Dobbyn next saw a shotgun pointed out the front passenger window of the Toyota Camry in the direction of their heads. Instinctively, both men leant forward. Mr Dobbyn put his foot down hard on the accelerator, causing the car to reverse. He also raised his right arm in an effort to shield his face.
At that moment you discharged the firearm at Mr Dobbyn. Mr Dobbyn was shot in his right forearm, although he did not realise this until he stopped the car a short distance away. Mr Hablas, who was not shot, saw large amounts of blood on the steering wheel and the driver’s door and seat.
After initially seeking first aid at a residential address, Mr Dobbyn went to the emergency department of the Western Hospital in Footscray shortly after 2.00am on 20 May 2017. On 21 May 2017 Mr Dobbyn underwent surgery on his right forearm and hand in which surgeons removed four shotgun pellets. A further seven shotgun pellets could not be removed.
Meanwhile, shortly after the shooting, Mr Hablas sent a Facebook message to Mr El-Haouli in the following terms ‘Rob shot Steve cuz. At the front of yours. Aimed at our heads.’ You returned to your home.
Between about 7.18am and 9.31am on 21 May 2017 you and Mr Haouli exchanged text messages about the shooting, the assault, and the whereabouts of the Mazda RX-8. Further text messages were exchanged between the two of you that evening. You also responded to a Facebook message from Mr Hablas. He had written ‘you fucking missed you cunt.’ You replied ‘next time I fucking wont.’
Police were notified of Mr Dobbyn’s gunshot wounds and commenced an investigation. On 20 May 2017 they seized Mr Dobbyn’s Honda Prelude for forensic examination. Ballistics experts established that at the time you discharged your firearm, the driver’s window was down and the cars were about 75 cm apart. An area of damage of multiple impacts from the shot pellets was observed across the metal ‘A’ pillar and rubber window seal of the driver’s window. Shot collected from the rubber window seal was number 7-weight lead shot.
You were arrested on 23 May 2017 and search warrants were executed at your home. As a result, police located a 12-gauge shotgun under the cushions of a couch in the lounge room. Police also located a quantity of methylamphetamine.
On the same day you participated in a record of interview with police. While you initially denied shooting anyone, you did ultimately admit that you had discharged the shotgun. You said that you had emptied some of the shotgun pellets from the cartridge before loading it. You said that you had recognised Mr Hablas, but did not know the other man. You said that you thought Mr Hablas would have had a firearm.
About a month later, on 21 June 2017, you made a written police statement about the assault you say occurred at Mr El-Haouli’s address on 18 May 2017 as well as the shooting on 19 May 2017. In that statement you falsely asserted that Mr Hablas had a gun with him on the evening of 19 May 2017 and that he had discharged that weapon at you at the same time that you had discharged your weapon towards Mr Dobbyn.
Questions arising
At the hearing of your plea, your counsel made submissions with respect to four matters arising from these facts said to reduce the objective gravity of your offending and your moral culpability with respect to that offending. First, that I should draw an inference that you were assaulted, severely, at Mr El-Haouli’s residence on 18 May 2017. This, your counsel urged, informed your later decision to return to that address. Second, that at the time you discharged the shotgun on 19 May 2017 you believed Mr Hablas, who had reached towards the gearshift in the Honda Prelude, was in fact ‘going’ for a gun. Third, that you had not aimed at Mr Dobbyn’s head, but at his upper body. Fourth, that the reduced number of pellets in the shotgun cartridge was indicative of a lack of intention to ‘do serious damage’.
With his characteristic fairness, the Senior Crown Prosecutor accepted that the Crown was not in a position to dispute: that an assault had occurred on 18 May 2017 (and in the circumstances that it was unnecessary to make a finding as to its severity); that the movement of Mr Hablas towards the gearstick caused you to mistakenly and unjustifiably believe that he was ‘going’ for a weapon; and that your gun was pointed at Mr Dobbyn’s upper body rather than aimed at his head. The prosecutor submitted that the alteration to the shotgun cartridge was indicative of your preparedness to use the weapon but ‘not kill’.
Victim impact
Your actions have had a profound impact upon Mr Dobbyn and his father, Mr Des Dobbyn. I have received and considered Victim Impact Statements from both men.
Mr Dobbyn states that he has lost partial use of his right arm and experiences pain as a result of your shooting him. His injury requires ongoing physical therapy and he is uncertain whether he will ever regain full use of his arm. Above and beyond the impact of the physical limitation on his own life, Mr Dobbyn is distressed at its impact on his ability to assist his eldest brother James. James, aged 28 years, has cerebral palsy quadriplegia and is wheelchair bound. James is dependent upon his family for all his needs and Mr Dobbyn, who undertakes most of the lifting and transferring of James, finds his ability to do so compromised.
Mr Dobbyn also experiences significant emotional difficulty, sleeplessness and anxiety. He lives in fear of being hurt again and feels he is no longer independent. Even hearing a sound like a car backfiring causes panic due to its similarity with the sound of a gunshot. In a cruel irony, Mr Dobbyn was once an enthusiastic clay target shooter, along with his father and brother. Now he cannot stand the sound, sight or touch of a gun. Mr Dobbyn Senior also speaks about the loss of enjoyment of a sport he and his sons had enjoyed for many years.
Mr Dobbyn has also lost his car. Just being in it gave him flashbacks, and he could not afford the repair bill, nor get the blood stains out the seats.
Mr Des Dobbyn also experiences sleeplessness and anxiety. He described the unbearable pain of seeing his son, a once confident young man, become fearful and fragile. Mr Des Dobbyn has taken on a lesser role in his employment to enable him to do the one thing he can for his son – be there whenever needed to offer comfort and support.
Personal circumstances
It is necessary to say something about your personal circumstances.
You were born on 16 April 1965 and raised on Norfolk Island. You are the fifth child in a sib-ship of six. A younger child, who was in fact the daughter of your second eldest sister, was raised as the seventh child in your family. Your parents’ marriage lasted until your mother’s death from cancer. Your father died the following year.
You loved and respected your father notwithstanding that he was a strict disciplinarian. You would be physically punished if you misbehaved. By modern standards your childhood was somewhat austere: you lived without electricity and the family did not own a television set until you were about 15 years old. But while you had many chores to do, you also had many opportunities for recreation. This included fishing at the beach, following which the family would cook whatever was caught. You would spend every Saturday morning working in the vegetable garden before surfing at the beach with your friends.
At the age of 12 you were sexually molested by a local schoolteacher. You told Warren Simmons, a psychologist who prepared two reports tendered on your behalf, that you blamed yourself for what had occurred and that your behaviour changed quite dramatically as a consequence. At school, where you had always struggled academically, you then also became disruptive and the class clown. Even so, you completed school to the end of year 10.
At the age of 14 you were introduced to cannabis by your brother. You apparently enjoyed the mellow feeling it gave you and you smoked it on a daily basis, sometimes at the rate of half an ounce per day. You also began ingesting psychoactive mushrooms, which you found particularly helpful in numbing your anger.
After leaving school, you moved to Sydney where you lived with your brother and worked as a spray painter for about 12 months. But homesickness made you return to Norfolk Island. There you found employment as a labourer off and on. At that stage you were using methylamphetamine, which you had been introduced to in Sydney. You used that drug intravenously and daily until you moved to Cairns in 2010.
In 2007 you were involved in an accident when the brakes of the truck you were driving failed. Your employer blamed you for the accident and terminated your employment. However, it appears you have had little difficulty in obtaining employment over the years, variously working as a fencer, painter, on cargo ships and as a handyman mowing lawns and chopping firewood. This work took you to several locations.
At the age of 28 you were living and working on the Gold Coast when you met a young woman with whom you formed a relationship that lasted some 20 years. There are three children of that relationship: a son and two daughters. It seems that your partner had issues with drugs and that over the years the children have been primarily in your care.
In 2010 you were diagnosed with attention deficit disorder by a psychiatrist. As a consequence, you commenced taking Ritalin in increasing dosages. However, you reported that the high dose made you feel too sluggish, so you ceased that medication and instead self-medicated with methylamphetamine, smoking up to half a gram per day. At the time of these offences you were injecting two to three points of methylamphetamine daily. It is in this context that your possession of a drug of dependence relevant to charge 4 arose.
Unsurprisingly for a man with your drug history, you have a criminal record revealing drug-related offending. The only relevant matter for present sentencing purposes is a conviction in 2004 at the Gosford Local Court in New South Wales for assault. It might be inferred that the circumstances of that offence were not serious given that you received a 12 month good behaviour bond.
You are currently serving a term of imprisonment for a number of dishonesty offences that arose subsequent to the instant offences. That sentence was imposed on 31 October 2017, but given the pre-sentence detention you had served,[5] it effectively commenced on 10 June 2017. While that offending is not relevant to the present matters, I have taken into account the fact that you been in custody since 23 May 2017 in consideration of the principle of totality.[6]
[5]Reckoned at 144 days.
[6]The sentence was 18 months imprisonment with a 12 month non-parole period. Given pre-sentence detention, that non-parole period ended on 9 June 2018. Accordingly, no re-sentencing exercise under s 14(1) of the Sentencing Act arises in the present circumstances. That sentence has been appealed and the matter is listed for 12 November 2018. In so appealing, no application for bail was made. Consequently the sentence for the dishonesty matters is being served.
Your counsel submitted that you are ashamed of and remorseful for your actions. Those actions, you say, sprang from your desire to ‘scare them’ as a result of your dispute over the Mazda RX-8 and the associated assault upon you the previous day.
Your counsel, quite properly, accepted that a sentence of imprisonment is the only sentencing option available in this matter. When you have served that sentence, you intend to return to Norfolk Island, where some of your family members still reside.
Discussion
In Nash v The Queen,[7] Maxwell P reviewed sentencing authorities for the offence of intentionally causing serious injury, and listed the following matters as routinely relevant to an assessment of the gravity of particular instances of that offence:
- The offender’s proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?
- The seriousness of the injury actually caused – both the immediate and long-term consequences for the victim.
- How vulnerable the victim was.
- Whether a weapon was used.
- How long the attack on the victim lasted.
- Whether the offender acted alone or in company.
[7][2013] VSCA 172;, [10] (‘Nash’).
In in this matter, it is not alleged that you aimed at the head of Mr Dobbyn; the Crown accepts that you aimed at his upper body. In Nicholls v The Queen,[8] it was observed that in an offence of this type, which involves the use of firearms, while it may be less dangerous to aim at the legs rather than the chest, the fact that firearms are used at closed range ‘necessarily places this type of offending in the higher range of seriousness’. At the time you discharged your weapon, you were less than a metre away from Mr Dobbyn and aiming at a vital part of his body. Even though you had modified the cartridge by reducing the number of pellets so as to ‘not kill’ (as phrased by the prosecutor) or ‘not do serious damage’ (as phrased by your counsel), it can only be the case that you had an intention to cause a serious injury.
[8][2016] VSCA 250, [137] (Osborn and Santamaria JJA).
And this you did. The immediate and ongoing injuries suffered by Mr Dobbyn are moderately severe. He suffered extreme pain and bleeding, and endured surgery which failed to remove all of the shot pellets. Mr Dobbyn describes partial loss of the utility of his right arm, a description consistent with the opinion of Dr Schreiber as referred to at the plea hearing. Further, the psychological injury to Mr Dobbyn persists.
At the time of the incident, Mr Dobbyn was extremely vulnerable. He was sitting in his own car, which was parked and stationary on a public street. He was unarmed. Once you produced your weapon, his only means of avoiding the threat posed was to reverse. That he attempted to do.
While the attack on Mr Dobbyn was not of great duration, it involved the use of a shotgun. And you, the lone perpetrator of that attack, were nonetheless in a car driven by another, such that you had freedom of movement with your upper body and your hands.
Having reviewed the matters stated in Nash to be relevant to an assessment of the gravity of offending of this type, the following observation of the Court of Appeal in Webster v The Queen[9] is apposite:
The absence of some aggravating features referred to in Nash means this offence is appropriately viewed at the low end of the upper range, but the point should be made that it is not necessary for the injuries inflicted to be catastrophic or for the assault to be prolonged or for the offence to occur ‘in company’ in order for such an offence to fall into the upper range of seriousness.
[9][2016] VSCA 329, [30] (Redlich JA and Beale AJA).
In my view your offending with respect to the charge of intentionally cause serious injury falls at the very upper limit of the mid-range. In arriving at that conclusion, I have considered the effect of the assault upon you the previous day and your actions in reducing the number of pellets in the shotgun cartridge. Those actions cause me to view your Facebook message to Mr El-Haouli that ‘some cunt is going to die’ as unsophisticated, drug-fuelled bravado. On balance, I accept that at the time you left your own premises with the loaded shotgun you intended only to scare the men with whom you were then in conflict.
However, even if your alteration of the shotgun cartridge was done to reduce the likely damage in the event that you fired the shotgun, that necessarily indicates that, if the circumstances arose, you were always prepared to use the weapon. Those circumstances did arise when you readily and in error believed that Mr Hablas was reaching for a gun.
Your moral culpability for this offence is high. You were motivated by a desire for retaliation. Your actions were brazen, selfish and dangerous in the extreme. They will forever impact upon Mr Dobbyn and his family. Your counsel relied on your drug addiction as relevant to your prospects of rehabilitation, specific deterrence and protection of the community.[10] The prosecutor did not argue against that submission. But, that you were drug affected rather than sober does not alter the fact that the sentencing principles of denunciation and general deterrence must have primacy. There can be no doubt that anyone who fires a gun in close proximity to another, and aimed at that other, with an intention to cause serious injury will receive condign punishment.
[10]Counsel relied upon Mourakakos v The Queen [2018] VSCA 26 , [118].
Although the spectrum of offending covered by the offence of intentionally causing serious injury is broad, I have been assisted by the provision of authorities with respect to current sentencing practice.[11]
[11]Warwick v R [2012] VSC 382; Nicholls v The Queen [2016] VSCA 250; Bedson v The Queen [2013] VSCA 88.
Your discharge of the shotgun at the driver of the Honda from close range is the act common to both the charge of intentionally causing serious injury and conduct endangering serious injury. Nonetheless, the prosecution argues, relying upon Phillips v The Queen; Liszczak v The Queen[12] that some degree of cumulation in the sentence is warranted.
[12][2017] VSCA 313.
Your counsel submitted that given that both offences arose from one incident, the totality principle would require that the aggregate sentence be just and appropriate, and give due weight to the principle of parsimony. Your counsel also submitted that charge three—the offence of being a prohibited person possessing a firearm —was necessarily committed to facilitate the commission of the first two offences. I have already said that charge 4 arose in the circumstances of your drug addiction.
Sentencing considerations
I take into account your plea of guilty. While that plea was not made at the earliest opportunity, it was nonetheless made well prior to trial. It involves an acceptance by you of responsibility for your actions and willingness to facilitate the course of justice. It has significant utilitarian benefit and has spared the witnesses the ordeal of a trial. Additionally, I accept that your guilty plea is evidence of your remorse for your conduct. That is so notwithstanding your false written statement to police of 21 June 2017 in which you stated that Mr Hablas discharged a firearm at you at the same time that you discharged your shotgun.
Your counsel submitted that your prospects of rehabilitation are good in light of your age and the fact that this offending was atypical in comparison with your criminal history. Alternatively, it was submitted that your prospects for rehabilitation are at least reasonable. The prosecutor agreed with that latter descriptor. In my view, your ability to abstain from illicit drug use in the future will be the most significant factor in your rehabilitation. You have made, it seems, a good start. It is to be hoped that your eventual return to Norfolk Island will contribute to your ability to live a drug-free and crime-free life. I agree that your prospects of rehabilitation are reasonable.
But, as I have said, I must give appropriate weight to the principles of denunciation, and general deterrence. In a severely drug affected state, you armed yourself with a loaded weapon and deliberately set out to put yourself in a situation where you could, if need be, fire that weapon. And you did so in a public place, having aimed your shotgun at the upper body of a vulnerable man entirely unknown to you. You were indifferent to the consequences of that action upon all occupants of the Honda Prelude.
Sentence
Mr McCoy, would you please stand.
Balancing, as best as I am able, the competing considerations laid down in the Sentencing Act and having regard to the matters I have just discussed, for the offence of intentionally causing serious injury, I sentence you to imprisonment for six years and six months. For the offence of conduct endangering serious injury, I sentence you to imprisonment for three years. For the offence of being a prohibited person possessing a firearm, I sentence you to six months’ imprisonment. For the offence of possessing a drug of dependence, I sentence you to one month’s imprisonment.
Six months of the sentence on charge two will be cumulative on the sentence for charge one. The sentences for charges three and four will be concurrent with the sentence imposed on charge one.
Accordingly, the total effective sentence is seven years’ imprisonment. You must serve a minimum of five years before being eligible for parole.
I declare that you have already served 17 days of that sentence by way of pre-sentence detention.
I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. I would have imposed a sentence of eight years and six months with a non-parole period of six years and six months.
I also make the disposal order and forfeiture order in the terms sought by the Crown.
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