R v Skeiner
[2000] VSC 371
•18 August 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1534 of 1999
| THE QUEEN |
| v. |
| DAVID JOHN SKEINER |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 18 AUGUST 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 371 | |
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CATCHWORDS: Sentence – Attempted murder – Shooting of police officer to avoid lawful apprehension – Need for general deterrence – Serious offender – Application of Part 2A of Sentencing Act 1991 considered.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. B. Kayser | Solicitor to the Director of Public Prosecutions |
| For the Accused | Mr. G. Steward | Victoria Legal Aid |
HIS HONOUR:
Application was made by the Crown for disposal and forfeiture orders relating principally to exhibits in this case. Such orders were opposed by Mr Steward, on behalf of his client, essentially on the basis that the conviction would be subject to an appeal. I propose to make the orders sought but I do so on the clear understanding that no action will be taken pursuant to them pending the outcome of any appeal.
Application was also made by the Crown for an order that David John Skeiner provide a sample of blood pursuant to the provisions of s.464ZF of the Crimes Act 1958. Again, this was resisted on the grounds of an imminent appeal. That, however, is no basis for refusing to make an order.
The present case involves serious offences of violence perpetrated by a person with a long history of violence. In itself, that provides sufficient warrant for making the orders sought.
In addition, I bear in mind the potential utility of the DNA record as an investigative tool and the social utility of further extending the DNA database. Finally, the samples sought may be obtained simply and unobstrusively.
Accordingly, I propose to grant the application.
I am further required by the legislation to explain to Mr Skeiner that the police may use reasonable force in order that the forensic procedure may be carried out.
Mr Skeiner, I have ordered that you provide the police with a DNA sample, being a blood sample, which should only involve a pinprick. It can be easily performed with your cooperation. However, the law also provides that the police may use reasonable force to enable the procedure to be conducted. No doubt your barrister will explain the matter further to you.
David John Skeiner, you have been found guilty by a jury of the attempted murder of Marc Dwyer at Somerton on 3 June 1999. You were also found guilty of recklessly engaging in conduct that placed Joanne Stafford in danger of serious injury at the same time and place. Finally, you were convicted of theft of a motor car at Epping on 3 June 1999. The jury acquitted you of several charges by direction and also acquitted you of a charge of armed robbery.
It is necessary to briefly outline the circumstances surrounding the commission of these offences since they are relevant to the sentences which I must impose upon you.
At approximately 9.39 p.m. On the evening of 3 June 1999, Senior Constable Marc Dwyer and Constable Joanne Stafford were on patrol in an unmarked police vehicle in the Mill Park area when they received a radio message of a possible armed robbery of the Civic Video Store in Plenty Road Mill Park. According to the message, the offender was carrying a sawn-off double barrel shotgun and the vehicle involved in the armed robbery was an old model red Commodore.
Shortly thereafter, while heading west along Childs Road, the police officers observed a vehicle matching that description. A U-turn was executed and, in response to the activation of police lights, the Commodore pulled over. The two police officers alighted from their vehicle and Senior Constable Dwyer commenced to walk towards the red Commodore from the rear. He had taken only a few steps when the Commodore accelerated from the scene. The police officers returned to their vehicle and a high speed pursuit ensued involving, at times, speeds of up to 160 kilometres per hour. That pursuit lasted about seven minutes and concluded when the Commodore came to a stop on a road outside the Blue Gum Caravan Park at Somerton. The police vehicle skidded to a halt with the front of the car facing the entrance to the caravan park. Its siren and flashing lights were still operating. Estimates of the distance between the two vehicles varied between seven and 30 metres. The vehicles were roughly parallel to each other. The driver and passenger immediately alighted from the red Commodore. The driver, who was a Noel Carroll, fled into the caravan park through the entrance gates. He ran down the entrance lane of the main driveway. He was not arrested until 7 or 8 June. You were the passenger in the vehicle. You emerged with a sawn-off shotgun in your right hand and, rather than fleeing, you ran towards the police car, approaching the front of it from the right-hand side. Both Dwyer and Stafford were still inside the vehicle. You were about two metres from the front of the bonnet when you raised the gun to chest height and pointed it downwards in the direction of the police officers. Both of the police officers had raised their hands in a gesture of surrender. At one stage Dwyer put his right hand down to try and find the door handle but, being unable to do so, he raised it again. You hesitated momentarily before moving towards the passenger side of the vehicle to a position slightly to the right of the headlight. You were holding the gun in the same manner. According to Senior Constable Dwyer the gun dipped but did not discharge. You then smiled, cocked the gun, raised it and fired. Senior Constable Dwyer had bent down to get out of the way as much as possible because he realised what was coming. He described seeing a bright flash of white light and feeling a large force hitting him on the side of the face, his left arm and open hand, causing grazes to them. The shot had shattered the windscreen and sprayed glass fragments throughout the vehicle. These caused grazes to the face and left arm of Senior Constable Dwyer.
At the time the shot was fired Constable Stafford described herself as being terrified and "slinking down into her seat". She thought she was going to die. She was focussed on the end of the firearm, heard a loud bang and closed her eyes. She received cuts to her face and right arm caused by the shattered glass fragments.
The incident outside the caravan park occurred quickly and could have taken as little as 10 seconds.
The evidence of the firearm examiner, Senior Constable Mark Chandler, was that the weapon you used had been fired with the end of the muzzle two metres from the windscreen of the police vehicle.
As it happened, the laminated windscreen had the effect of dissipating the shot and slowing its velocity, although a number of pellets penetrated the police vehicle. The evidence of Senior Constable Chandler was that, in the absence of any windscreen, the shot would have struck the driver's door pillar at approximately the level where the headrest met the back of the seat. Although the 12 gauge Winchester seven and a half shot cartridge is a lightweight shot, it is quite capable of inflicting a fatal injury.
After firing the shot into the police car you ran into the caravan park still armed with the shotgun. By this stage Senior Constables Coates and Veitch of the Traffic Operations Group had arrived at the scene and, with Senior Constable Coates driving, pursued you into the caravan park.
As it entered the caravan park through the exit gate, the tyres on the police vehicle were damaged by spikes. Nonetheless, the pursuit continued as you ran down the main roadway and then turned right up what proved to be a dead-end lane. You then turned left towards the space between two on-site caravans. At this point, you looked over your left shoulder towards the police car before pointing the firearm, which you were now holding in your left hand, towards that vehicle. Unaware that the weapon was no longer loaded, and believing that you may use it again, Senior Constable Coates decided to disarm you by knocking you down with the police vehicle. He described intending to "sort of swipe" you with the front of the car. However, probably because of the damage to the tyres, the vehicle understeered and went straight ahead. Consequently, you were struck in the lower body at approximately 15 to 20 kilometres per hour and knocked into a wooden staircase which was part of one of the on- site caravans. The front driver's side bumper and headlight had impacted you in the upper leg area forcing you briefly on to the bonnet of the police car before you fell to the ground. Senior Constable Coates reversed the police vehicle which ended hard up against the adjacent caravan. His evidence, which the jury must be taken to have accepted, was that he ran from the police vehicle, grabbed the shotgun which was lying on the ground near your backside, and moved it some metres away. It was estimated by Senior Constable Coates that from the time he first saw you standing in front of the car to the time you were run over would have been between five and 10 seconds. There was evidence from Sergeant Trevor Evans, the crime scene examiner, that the area between the two on-site vans was only approximately 42 metres from the caravan park entrance.
After being handcuffed, you were searched by Senior Constable Veitch who, according to his evidence, found nothing at all on you. This was prior to 10 p.m.
It appears that about 20 minutes after you were knocked down you were treated by ambulance officers at the scene and, shortly afterward, were conveyed to the Northern Hospital, Epping, arriving at 10.50 p.m. You were subsequently transferred to the Intensive Care Section of the Western General Hospital.
During the course of the evening the red Commodore which had been left with the engine running was examined. The steering lock had been damaged, the wiring exposed and the rear passenger side quarter vent window smashed, leaving a sprinkling of glass inside the vehicle. Located on the floor in the front passenger area was a plastic bag containing a quantity of cigarettes, a $50 note and coins totally $97.85. There was also a piece of material converted into a makeshift balaclava.
While treating you at the scene, the ambulance officers had removed parts of your clothing. Subsequently, some time after midnight, Sergeant Trevor Evans located bank notes totally $305 in the right front pocket of your jacket. This, together with the amount located in the stolen vehicle, was virtually the equivalent of the amount stolen from Civic Video.
As a result of being struck by the police car you sustained a number of serious injuries. These included traumatic haemopneumothorax (being a collection of blood and air in the pleural cavity), fractures of the left sixth and seventh ribs, a fractured right wrist, fractured left scapula and fractures to both sides of the jaw. Additionally there were two possible fractures to the vertebrae. These injuries resulted in operations to the right forearm and the insertion of plates and screws as part of the treatment of the bilateral facial fractures. These injuries have left you with reduced strength in your wrist, a tendency at times for your jaw to lock and a numbness of the left side of your face (although this is gradually diminishing).
Subsequent to your arrival at the Northern Hospital, a blood sample was taken by the hospital authorities. An analysis of it revealed a blood alcohol level of 0.24 (which is almost five times the legal limit for driving a motor car).
The jury acquitted you of armed robbery and it is trite to say that such offence, and the circumstances surrounding its commission, play no part in your sentencing. In reaching their decision, the jury must have taken into account that the description of the armed robber given by the shop assistant, Mr Damien Willoughby, did not match your general appearance and, in particular, could not be reconciled with the clothing you were wearing on that night. Mr Willoughby did, however, identify the firearm and the balaclava later recovered by the police. Additionally, the jury may have felt some disquiet at the police claim to have found part of the proceeds of the armed robbery in your jacket following the earlier search which, according to Senior Constable Veitch, revealed that the jacket pockets were empty. It should also be borne in mind that the Crown case was based solely on the proposition that you were the person who entered the video store and not that you were acting in concert with Noel Carroll. There can, however be no doubt that at the time the car in which you were a passenger left the video store, you were aware that an armed robbery occurred. Further, the jury were satisfied that you were guilty of the theft of the motor vehicle. I am prepared to accept that this was on the basis that you travelled as a passenger in that vehicle knowing it to have been stolen.
Regardless of your culpability or lack of it for the armed robbery, your situation was that you were aware that robbery had been committed and you were in a stolen car being pursued by the police. Once the police had successfully followed the red Commodore to the caravan park, your actions were directed to avoiding apprehension. Those actions involved deliberately approaching the police car with the loaded firearm and firing it at short range towards police officers and, in particular, Senior Constable Marc Dwyer. At the time the shot was fired both police officers were, in effect, constrained and helpless within the police vehicle and both had their arms raised in surrender. The shooting itself was deliberate and, on the jury verdict, it was perpetrated with the specific intention of killing Marc Dwyer. It was sheer good fortune that the vehicle windscreen slowed and dispersed the shotgun pellets, otherwise you would probably have faced a murder charge.
Your defence was to suggest, through your counsel, that you were not the person who fired the shotgun and that it had somehow been planted on you by police. You gave no evidence and, not surprisingly in all the circumstances I have outlined, this assertion was rejected by the jury.
It is highly likely that your judgment on this evening was affected by the large amount of alcohol you had consumed. Additionally, your actions may be seen as relatively spontaneous and unpremeditated. That being said, this offence of attempted murder is an extremely serious one. Any sentence passed must reflect the gravity of the offence and the Court's denunciation of it. It is also very important that any sentence is calculated to deter persons who might be minded to resort to potentially fatal armed force to prevent their lawful apprehension by police. Police officers ought to be able to perform their lawful duties without the threat of lethal violence.
In the course of his comprehensive plea on your behalf, Mr Steward canvassed a number of matters personal to you which are relevant to the sentences to be imposed. But before turning to them I should mention the effect of this shooting upon Marc Dwyer and Joanne Stafford. True it is that the physical injuries sustained by each of the police were superficial. However, the mental trauma of this unexpected armed confrontation has been considerable. For a start, both believed they would be killed. In a victim impact statement tendered to the Court, Marc Dwyer speaks of the far-reaching effect these events have had on his family life and on his relationship with colleagues, the public and his friends. At one stage he became suicidal and developed a level of paranoia. Senior Constable Dwyer has required counselling and anti-depressant medication. His career prospects within the police force may well be permanently damaged. The stress of these events upon Ms Stafford was quite evident from her emotional distress in giving evidence in this case.
David Skeiner, you are presently 33 years of age, having been born in Melbourne in 1967. Your parents separated when you were aged five. Both have since remarried and you remain on good terms with each. Apart from step brothers and sisters you have one sister aged 31 from your parents' union. She, together with your mother, remain supportive of you.
Your early years were marked by poverty, family dislocation and, following your parents' separation, domestic violence visited upon your mother by other male associates. Your youth was apparently marked by a degree of delinquency and anti-social behaviour in the company of other young men in the Brunswick area. You were raised in that suburb and attended a number of primary schools. Your secondary education was at Brunswick Technical School where you reached Year 10 level. At school you were strongly involved in sporting activities at which you excelled.
Your subsequent employment history is patchy - affected, no doubt, by the periods of time you have spent in custody. You worked with an engineering company until the age of 19 and have subsequently had a number of casual labouring jobs. Your last job was at a meatworks at Campbellfield where you worked night shift.
You have had two significant relationships, both of which produced daughters. Prior to your incarceration you maintained contact with your younger daughter, aged 6, through access visits.
You have a large number of prior convictions. Between May 1984 and August 1993 you had some 12 convictions which might be regarded as relating to dishonesty. Additionally, you have 14 assault related convictions including assault occasioning actual bodily harm, armed robbery, intentionally causing serious injury and two offences of assault with a weapon. You also have four prior convictions for assaulting police and resisting lawful arrest respectively.
I was told that many of the assaults (including the assaults on police) and the convictions for resisting arrest, arose out of hotel altercations and that, when you were sober, you had no aversion or contempt for police officers. Your record indicates that this is not so when you are intoxicated.
I was informed that you have no memory of many of the prior offences. The armed robbery which occurred in 1987 was of a 7 Eleven store in Brunswick where you were known to the proprietor. You were apparently intoxicated at the time. The offence of intentionally inflicting serious injury, for which you were convicted in 1991, arose out of an argument with neighbours in which you lost control, picked up an implement and struck the victim with it. The assaults with a weapon, which brought you before a court in August 1993, involved the use of an imitation pistol.
According to the report of Mr Ian Joblin, a Forensic Psychologist, who also gave evidence on your behalf, you have a serious alcohol problem. This is reflected in many of your prior convictions. You told Mr Joblin that your problem with aggression relates to perceived provocation and a lowered threshold of tolerance after alcohol consumption. It was put by Mr Steward, on instructions from your mother and sister, that you are a loving and kind person when sober but your disposition becomes less rational and more aggressive when you are intoxicated.
Mr Joblin gave evidence that you are reasonably intelligent and, whilst you have psycho-social problems, you are not psychotic.
It was submitted on your behalf that, after your release from custody in January 1994, and coinciding with the relationship you established with a young lady named Lana, you determinedly put your alcohol abuse and anti-social behaviour behind you. This period lasted for almost four and a half years. Your parents were proud of this achievement which, in turn, gave you satisfaction. It appears, however, that following your separation from Lana, and the subsequent termination of your employment at the meatworks two weeks before this event, you resumed your heavy drinking. Indeed, about this time you were charged with shoplifting a slab of beer which, whilst not a prior conviction, is indicative of the resurgence of your drinking habit.
I accept that you are remorseful at the disappointment your latest conduct has caused your family. You cannot, however, receive any credit for remorse for your role in the shooting which you continue to deny.
I take into account, to a limited extent, the adverse effect of your injuries upon you in a custodial setting. However, they may be seen to have been precipitated by your own actions on this evening.
Your extensive criminal history requires that considerable weight be given to the principle of specific deterrence. Furthermore, your prospects of rehabilitation are bleak unless you can overcome your abuse of alcohol. You are not without intelligence and your efforts during your four year interregnum from criminal activities does provide some hope for the future.
I need briefly to mention two other matters. Firstly, it was put by your counsel that questions of parity arise with regard to the sentence imposed upon Noel Carroll for theft of a motor car and armed robbery (to which offences he pleaded guilty). Apart from the offence of car theft, that concept has no application to the quite different offences for which a jury has found you guilty.
Secondly, it was submitted by Mr Kayser, on behalf of the Crown, that you qualify as a serious offender pursuant to Part 2A of the Sentencing Act 1991 and that you should be sentenced having regard to the relevant provisions.
In simple terms, the criterion for the characterisation of a person as a serious offender is the conviction and imprisonment for a serious violent offence. Your prior conviction for intentionally inflicting serious injury is such an offence and places you in that category. In sentencing a serious offender for a serious violent offence - and attempted murder is such an offence - a court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed. To achieve this result a sentence may be imposed which is longer than the gravity of the offence based on its objective circumstances. Further, unless a court directs otherwise, the sentence for the serious violent offence (here attempted murder) must be served cumulatively upon any other sentence imposed. In this case the sentences for theft of a motor car and reckless conduct endangering a person constitute the other offences for which you must be sentenced.
I have carefully considered the prosecutor's submissions. In your case, however, I do not intend to impose a proportionately longer sentence. In my view, the sentencing range available is adequate to reflect the purposes of sentencing, including the paramountcy of community protection. In reaching this view I also take into account that the triggering offence occurred over nine years ago and that, after 1994, you lived for a number of years in the community without resorting to any violent conduct. Nor is it necessary, in the circumstances of this case, involving in single violent criminal act, that there be automatic cumulation of the sentences imposed. In reaching this conclusion I do not, in any way, denigrate the traumatic experience undergone by Constable Stafford.
In determining the appropriate sentences I have taken into account the seriousness that the law attributes to these offences, the circumstances surrounding their commission as I have outlined them, and your personal history. In fixing the individual sentences I have also had regard to the overall effective sentence which I regard as being appropriate. Balancing, as best I can, the sentencing principles enunciated in the Sentencing Act, including protection of the community, punishment, specific and general deterrence and rehabilitation, I have concluded that the appropriate sentences are as follows: For the offence of theft of a motor car, you are sentenced to be imprisoned for three months; for the offence of the attempted murder of Marc Dwyer, you are sentenced to be imprisoned for 14 years; and for the offence of reckless conduct placing Joanne Stafford in danger of serious injury, you are sentenced to two years' imprisonment.
I direct that all of the sentences imposed be served concurrently. This results in a total effective sentence of 14 years. I fix a non-parole period of 11 years. Further, I declare the period to be reckoned as already served under that sentence is 438 days, inclusive of today's date, and I direct that there be noted in the records of the Court the fact that this declaration is made and its details.
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