R v Vandermade

[2022] NSWDC 679

District Court

New South Wales

Medium Neutral Citation:

R v Vandermade [2022] NSWDC 679

Hearing dates:

6 December 2022

Date of orders:

15 December 2022

Decision date:

15 December 2022

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Impose a sentence of 14 years and 6 months imprisonment. The sentence consists of a non-parole period of 9 years 7 months and a balance of term of 4 years and 11 months.

The sentence commences 3 September 2020 and expires on 2 March 2035. The non-parole period expires on 2 April 2030.

The offence on the certificate under s. 166 of the Criminal Procedure Act is dismissed as there is no evidence to support it.

Catchwords:

CRIME – Violent offences – Shoot at with intent to murder

Legislation Cited:

Crimes Act 1900 (NSW), s 29

Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 21A

Cases Cited:

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)

Thomas Karras Vandermade (Offender)

Representation:

Counsel:

Mr Paish (Crown)

Mr Djemal (Offender)

Solicitors:

Director of Public Prosecutions (Crown)

Miers Legal (Offender)

File Number(s):

2020/00257160

SENTENCE

Introduction

1. The offender stood trial before myself and a jury earlier this year on an indictment containing 4 counts. The second count was expressed to be in the alternative to count 1, and the third count was expressed to be in the alternative to count 2. The 4^th count stood alone. On 3 June 2022 the jury returned verdicts of guilty on count 1 and not guilty on count 4. In the circumstances, no verdict was taken on counts 2 and 3. There has been some delay in the sentencing of the offender due to the unavailability of a psychological report and the offender changing legal representation.

2. As a consequence of the verdicts the offender stands to be sentenced having been found guilty by a jury of the following offence:

3. That on 8 August 2020 in Warwick Farm the offender did shoot at John Lavulo with intent to murder John Lavulo. That is an offence under s. 29 of the Crimes Act and has a maximum penalty of 25 years imprisonment and there is an applicable standard non-parole period of 10 years.

4. Of some significance in the fact finding exercise I must now undertake is the jury’s verdict of not guilty on count 4 on the indictment. That was a charge that on 8 August 2020 the offender possessed a firearm not being authorised to do so. The Crown case on count 4 on the indictment, as put to the jury, was that the offender was a person who actually discharged a firearm at the victim in the incident which grounded count 1. It was that alleged possession of a firearm that was relied upon for the proof of count 4.

The facts

5. I turn now to find the facts consistent with the jury’s verdicts in the trial. I record that to the extent I find facts adverse to the offender on sentence I must find those facts established beyond reasonable doubt. To the extent that I find facts favourable to the offender I need only find those facts established on the balance of probabilities.

6. In determining the facts upon which the offender is to be sentenced it is important to record how both counts 1 and 4 were put to the jury.

7. I have already referred to the fact that the Crown’s case on count 4, the possession of an unauthorised firearm charge, was that the offender was a person who shot at the victim and it was his alleged possession of that firearm at that point which was relied upon for the charge. The jury’s verdict of not guilty on count 4 on the indictment means that the jury was not satisfied beyond reasonable doubt that the offender’s participation in the joint criminal enterprise involved being someone who shot at the victim. To that extent the verdict on count 4 involved a partial rejection of the Crown’s case on the degree to which the offender participated in the joint criminal enterprise the subject of count 1.

8. In a submission advanced on the offender’s behalf by his counsel on sentence, who was not counsel at trial, it was submitted “that such joint enterprise was in operation from the point when the shooter pulls out a firearm and discharges the first projectile at the direction of the victim and the offender continues to run towards the victim’s motor vehicle with others”. In my opinion, that submission must be rejected given the nature of the joint criminal enterprise that the Crown took to the jury and which was accepted beyond reasonable doubt by the jury.

9. The jury’s verdict of guilty on count 1 means that the jury accepted beyond reasonable doubt that the Accused was a party to a joint criminal enterprise with 3 other men, to ambush John Lavulo, to have firearms with them, and to attempt to kill John Lavulo by shooting at him. An acceptance of that joint criminal enterprise by the jury beyond reasonable doubt must result in a rejection of the narrow construction of the facts to be found on sentence as advanced by the offender’s counsel.

10. I note that when sentencing an offender for participation in a joint criminal enterprise each participant in the criminal enterprise is equally responsible or liable for all the acts committed in the course of carrying out the enterprise by whomsoever they are committed. However, a particular participant’s level of culpability stands to be assessed by reference to his particular conduct in the criminal enterprise. The focus for sentencing purposes is what a particular offender did during the joint criminal enterprise.

11. Given the nature of the joint criminal enterprise alleged by the Crown, it is an overwhelming inference that the planning of the shooting of the victim with the relevant intent occurred before the shooting actually occurred. The joint criminal enterprise accepted by the jury involved an agreement to ambush the victim and to have firearms with the participants as at the time of the ambush and therefore must have involved some planning. Other facts consistent with the jury’s verdict support such a finding.

12. The evidence establishes that the victim knew the offender by his online name of Masi Rooc, the victim using the online name of Big Kash, or Kash and they were what the victim described as “rappers”. As I understand it, a rapper is a person involved in the creation of modern music often involving messages in the lyrics. The evidence did not establish that the offender and the victim had ever met in person. The victim and the offender had traded negative comments about each other on social media in relation to their rapping activities. While this animosity was relied upon by the Crown as a motive for the offender involving himself in the joint criminal enterprise, and I accept that it was, I do not consider it establishes beyond reasonable doubt that he was the person who was the instigator of the joint criminal enterprise.

13. Having regard to the CCTV footage that was tendered before the jury, I am satisfied that the offender met with a number of other men in the afternoon of 8 August 2020 between about 3.30 and 4.25 pm in the carpark of the Mercure Hotel at Rouse Hill. One of the men that the offender met with was dressed in what appears to be a white or grey track suit. The significance of that fact will become apparent when I shortly discuss what occurred around 9pm that day. The Accused returned to the carpark of that Mercure Hotel at approximately 5.45 pm and parked in the car park of that hotel in his distinctive red Jaguar motor vehicle. A white Holden Cruze motor vehicle at 5.47 pm parked next to the Accused’s vehicle in that carpark. The offender in his red Jaguar motor vehicle left the hotel carpark at about 6.03 pm as did the white Holden Cruze. Given all of the evidence that was before the jury, I am satisfied that most, if not all, of the men with whom the offender met with at the Mercure Hotel that afternoon and evening were involved in the joint criminal enterprise.

14. At 8.26 pm on 8 August 2020 the victim left the Canley Vale Diggers Club at 1 Barley Street Canley Vale.

15. At about 9pm on 8 August 2020 the victim drove his motor vehicle, a white Mercedes Benz, into the covered driveway of the carpark of his apartment block at 57 Lachlan Street Warwick Farm. His partner at the time, Ms Amelia Schubert, was sitting in the front passenger seat. The offender, driving his red Jaguar motor vehicle, drove down the entrance to the carpark behind the victim’s car. The victim stopped his vehicle at the entrance to the carpark to use the key to obtain access to the carpark. What then occurs can be clearly seen in the CCTV footage from the carpark entrance which became exhibit 3 in the trial.

16. Initially the offender drove his car in behind the victim’s car, but then moved his car to be alongside the victim’s and to occupy space in the exit lane of the entrance to the carpark. The offender then stopped his car alongside the victim’s car. At approximately the same time that that happened, another vehicle was parked up the top of the entrance to the carpark. Two men got out of that car and commenced to run down into the garage towards the victim’s car. The victim then began to quickly reverse his car out of the entrance to the carpark. As the two men who are on foot get close to the victim’s car, the offender got out of his vehicle as did his passenger, a man in a white/ grey track suit, and they began to run up the driveway towards the victim’s car as it is reversing quickly out of the driveway to the carpark. One of the men who has run down the driveway collides with the passenger side of the victim’s vehicle and the other man can be seen to pull out a firearm, which looks like a pistol, and discharged it at the victim’s vehicle.

17. I am uncertain how many times the firearm was discharged but other evidence establishes that it was more than once. The victim’s vehicle continued to quickly drive up the driveway and departed the scene. While the victim’s vehicle reversed up the entrance to the carpark, the offender and his passenger have run up the driveway apparently chasing after the victim’s vehicle. After the victim’s vehicle has left the scene the offender and the man in the white/grey tracksuit have returned to the offender’s vehicle. The offender initially goes to get into the driver’s seat of his vehicle, but ultimately ends up in the passenger seat and the man in the white/grey tracksuit gets into the driver’s seat. The offender’s vehicle then reverses quickly up and out of the driveway to the carpark. At least one bullet entered the centre of the front windscreen of the victim’s vehicle before it left the driveway to the carpark.

18. After leaving the driveway to the carpark, the victim drove through a park and then to Liverpool Hospital. The victim at the hospital was found to have suffered a gunshot wound to his right shoulder with a bullet passing through the right deltoid muscle. He also received a gunshot wound to his left forearm. He underwent surgery on 9 August 2020 and a bullet was removed from the right shoulder. The victim underwent further surgery on 11 August 2020 during which both wounds were treated and a skin graft was applied to the forearm, the graft being taken from the left thigh. The victim was discharged on 13 August 2020 and at that time was said to have persistent significant pain.

19. The victim was seen at Fairfield Hospital on 17 August 2020 where his dressings were attended to by nursing staff and a detailed assessment of hand function was performed which indicated a degree of residual weakness.

20. In his report of 11 April 2022 Dr Duflou, a Consulting Forensic Pathologist, noted that little information was provided in relation to the victim’s progress and expressed the opinion in relation to the victim’s prognosis in the following terms:

“Given the general appearances and the nature of the injury, it is very likely that the shoulder will have healed fully without long term physical impact. With reference to the hand injury, there is expected to be long term and persistent scarring of the forearm and it is entirely possible there will be persistent decreased function as a result of the injury sustained”.

21. Dr Duflou also expressed the following opinions in his report:

“The shoulder injury was most unlikely to have resulted in a fatal outcome without medical treatment. With reference to the left forearm injury, the presence of developing compartment syndrome which required urgent surgical treatment is an indication that the (victim) was at risk of developing full blown compartment syndrome which results in necrosis (or death) of muscle and other structures within the affected part of the body. Such process has a high risk of becoming infected, and if this occurs it can progress to gangrene and sepsis. Both of these latter conditions have a very high mortality if not treated with a combination of surgical treatment and intravenous antibiotics as a medium.”

22. In assessing what weight to give to Dr Dufou’s opinions I note he at no time physically examined the victim. I also note that it appears the medical records that were made available to him were essentially those medical records that existed as at the date the victim was discharged from hospital. On sentence counsel for the offender tendered a number of videos posted by the victim to the online platform TikTok in the second half of 2021. Those videos show the victim engaging in very vigorous exercise using his shoulders and arms. Fortunately, it would seem that the V has made a full physical recovery from his injuries.

Objective seriousness

23. I will now turn to my assessment of the objective seriousness of the offence.

24. This attack upon the victim at the entrance to the driveway of his carpark was a planned and co-ordinated attack. It involved at least 4 men including the offender. It was co-ordinated as two cars were involved being the red Jaguar driven by the offender, which initially drove down behind the victim’s car and the other car from which two other men exited and ran down towards the victim’s car, one of them being the shooter. I am satisfied beyond reasonable doubt that the offender was involved in the planning of this attack. I am satisfied beyond reasonable doubt the planning commenced during the meetings that were engaged in that afternoon and early evening at the Mercure Hotel in Rouse Hill I referred to earlier. As I also indicated earlier, I cannot be satisfied beyond reasonable doubt that the offender was the instigator of the attack. I am satisfied beyond reasonable doubt that he involved himself in it because of the animosity he had towards the victim. The offender drove his red Jaguar into the driveway of the victim’s carpark in a manner designed to make it more difficult for the victim to escape the shooter who was in the other car. Given the manner in which the Crown case was left to the jury, I am satisfied beyond reasonable doubt that the offender knew that at least one of the other men involved was armed with a firearm prior to driving his vehicle into the entrance to the victim’s carpark as he did.

25. I note that another person, Ms Schubert, was in the front passenger seat of the victim’s vehicle and she was very fortunate not to be injured or killed by any of the shots that were fired at the victim’s car that evening. The offence was committed around 9 pm in the entrance of a carpark used by residents of an apartment block and was a very dangerous incident as far as those residents were concerned.

26. I consider that the offence is well within the mid-range of objective seriousness for an offence of this type, even when I have regard to the fact that the offender was not someone who discharged the firearm and the full physical recovery apparently made by the victim.

27. The Crown submitted the following objective aggravating factors under s.21A of the Crimes (Sentencing Procedure) Act 1999 were present here: the offence was committed in company; the offence was committed in the home of the victim; the injury caused was substantial; the offence was committed without regard to public safety; the offence involved a grave risk of death to another person, not the victim as that risk is inherent in the offence, but Ms Schubert and that the offence was part of a planned criminal activity.

28. I am satisfied each of those aggravating factors is established here beyond reasonable doubt, but I have taken them into account in my assessment of the objective seriousness of the offence in order to avoid double counting.

The offender’s subjective case

29. The offender is 31 years of age.

30. The offender has a significant criminal history, in particular, in relation to offences of violence. In 2011 he received sentences of full-time custody for offences of assault occasioning actual bodily harm and reckless wounding. In 2012 in this Court, he received a sentence of full-time custody for an offence of robbery in company and for assaulting a law enforcement officer in the execution of his duty. In 2013 he received a sentence of full-time custody for an offence of common assault. In 2016 he received a sentence of full-time custody for assaulting a law enforcement officer in the execution of his duty. In 2017 he received sentences of full-time custody for offences of assault occasioning actual bodily harm and common assault and assaulting a law enforcement officer in the execution of his duty.

31. The offender’s record for violent offending is substantial. The Crown submitted it constituted an aggravating factor on sentence under s.21A of the Crimes (Sentencing Procedure) Act 1999. Not without some hesitation, I have concluded that his history does not amount to an aggravating factor, principally because of his still relatively young age and after being released to parole on 6 April 2018, he appears to have not committed any serious offence of violence until the offence I am to sentence him for.

32. Clearly his record for violence disentitles him to any leniency in this sentence.

33. I note many of the offender’s prior offences were committed in the custodial environment and that he spent from 7 February 2011 to 6 April 2018 in continuous custody.

34. In terms of material that is before me in the offender’s subjective case I have the following: a psychological report prepared by Alison Cullen Forensic Psychologist dated 4 December 2022; an affidavit of Rowena Van Der Made, the offender’s sister, sworn 5 December 2022; an affidavit of Mariam Sidrak, the offender’s partner sworn 5 December 2022 and an affidavit of the offender’s solicitor sworn 5 December 2022. There is also a Sentencing Assessment Report. The offender did not give evidence on sentence.

35. The offender described to the psychologist that he was the youngest of his parents four children. His father was of Samoan background and his mother was a New Zealander. He described to the psychologist that from a young age he received what he termed “hidings” from his father. The offender described to the psychologist resentment he had concerning the amount of time his mother attended to one of his sister’s who had a debilitating health condition.

36. The offender told the psychologist that his parents returned to Samoa during his previous incarceration and are now separated. He said he felt partly responsible for their separation due to their reactions to his incarceration. His contact with family members has reduced during his periods of incarceration.

37. He described to the psychologist having his first significant relationship when he was 13 years old which lasted for some 5 years. His next significant relationship was said to have begun when he was 25 after a woman had commenced corresponding with him whilst he was in custody and that relationship lasted 3 years.

38. The offender reported being with his current partner since early 2020; he had been in that relationship for 6 months before being placed in custody for the current offence. He stated that the relationship was a strong and supportive one.

29. The offender’s sister in her affidavit confirmed the detail the offender had provided to the psychologist about his family background and detailed that the offender’s father would regularly beat him and recorded there were occasions when as a boy, he could not attend school because of bruising. His current partner gives an account in her affidavit of having been told a background by the offender which is consistent with the background he has provided to the psychologist.

30. The offender maintains the support of his sister Rowena and of his current partner. His partner details her observations of the conditions of custody that the offender has been kept in during his current incarceration.

31. The offender claimed to the psychologist that he had been subject to bullying during his schooling and that he was hypersensitive to peer rejection when at school. He reported being suspended frequently from year 7 onwards. He said he was expelled from school halfway through year 9 and recommenced at a behavioural school where he was expelled after a few months.

32. After leaving school he had a brief period of being paid to play football and entered custody at 19 years of age. The psychologist records that in his 7 years of custody he did not obtain employment. Upon his release he had a few months working in scaffolding which he did not enjoy. He then said he commenced his music career, claiming that he had a degree of success with his music. His partner in her affidavit outlines in some detail the success the offender managed to achieve with his music career.

33. Since returning to custody the offender claimed he had not been able to work because he was being held in maximum security in Goulburn. He told the psychologist that he is allowed three 6 minute phone calls a week. Due to his classification within the prison system, he has little time out of his cell and is permitted to associate with few other inmates. The psychologist noted that despite these restrictions the offender provided her with a number of certificates in relation to courses he has completed in custody.

34. The offender told the psychologist that he experimented with cannabis when he was 11-12 years of age. His initial criminality he said was associated with binge alcohol use. The offender told the psychologist that when he was incarcerated at 19 he began to use drugs such as cocaine, methamphetamine and MDMA. He maintained that since entering custody in September 2020 he has not engaged in illicit drug use.

35. The psychologist sets out details of the offender’s mental health as it was observed and assessed during the period 2011 to 2018 which he spent in the prison system. An assessment made by another psychologist in 2017 detailed the difficulties he experienced as a consequence of the conditions of his custody as at that time. The psychologist who wrote that assessment considered that much of his offending within the prison system was committed in the context of “acute psychological distress in response to a protracted period of segregation and social isolation”. The previous psychologist considered that the offender was not inherently anti-social.

36. I note the Sentencing Assessment Report records that Justice Health Records record that the offender was diagnosed with Borderline Personality Disorder when last in custody.

37. Ms Cullen psychologist administered a number of psychometric tests to the offender for the purposes of her report. The offender was found to have severe levels of depression and anxiety and a moderate level of stress. Ms Cullen records that the offender presented with symptoms commensurate with complex childhood trauma, Attention Hyperactivity Disorder, Borderline Personality Disorder and Anti-Social Personality Disorder. The psychologist noted that those diagnoses shared similar features such as impulsivity, emotional lability, irresponsibility and co-morbidity.

38. In particular I note that the psychologist considered that despite concerns about the offender’s limited capacity for empathy and apparent desire for control, she did not consider that the diagnostic criteria for psychopathy were met.

39. The formal diagnoses recorded by Ms Cullen in relation to the offender were: ADHD; Borderline Personality Disorder; Other Specific Trauma and Stressor Related Disorder and Antisocial Personality Disorder.

40. The psychologist considered that the offender’s apparent improvement in his behaviour in custody is likely attributed to a combination of increased maturity, recognition of his institutionalisation, cessation of illicit substances and gained motivation in self growth.

41. The Sentencing Assessment Report records that the offender’s behaviour in custody has improved in comparison to his previous periods of incarceration. He was said to have expressed a desire to move towards a pro-social lifestyle however described affiliation with a group called Outcast which he denied was a gang.

42. The offender maintains his innocence, which is of course his right, but it means there is no evidence of remorse. I note the Sentence Assessment Report records that he appears to show some insight into his violent past and that he recognised he was capable of violence, but claimed he was not a violent person.

43. The Sentence Assessment Report assessed the offender as having a medium risk of re-offending and Ms Cullen recorded he had a moderate risk. Those assessments might be thought to be generous given his criminal history of violent offending and his personality traits as reflected in the psychological material before me.

Imposition of sentence

54. Given the offender’s past criminal history, his mental health issues, and the fact he has no remorse for the offence, despite the support he still enjoys from his partner, sister and other family members, his prospects of rehabilitation are no better than guarded.

55. I have already mentioned the nature of the custody in which the offender is kept. His solicitor’s affidavit provides more detail in that regard. That affidavit details that the offender is to be maintained in a maximum security correctional centre; cannot access any gym or oval and cannot work in prison industries.

56. Even without Covid 19 restrictions there are significant restrictions on the ability of the offender to have visitors. As I noted earlier, he is not allowed out of his cell for long periods and is restricted in the inmates he may associate with and has limited phone contact with friends and family. He has been subject to a number of lock-ins between 24 December 2021 to 19 November 2022.

57. The solicitor’s affidavit details the additional restrictions on inmates during the Covid 19 Pandemic, those restrictions being well known to the Court. I note he has been in custody since 9 September 2020 during which at times the Covid 19 Pandemic has been at its most severe.

58. I have had regard to his conditions of custody in arriving at the appropriate sentence to impose on the offender.

59. I propose to make a finding of special circumstances when imposing the non-parole period. Clearly given his mental health issues and his criminal record, when he is next released into the community he will need a significant period of assistance in integrating back into the community. He is also approaching institutionalisation. I do not accept the submission advanced on his behalf that he is at the “crossroads” as that expression is sometimes used in the cases. Given his age and criminal history I consider he is not someone at “the crossroads”.

60. I have had regard to his mental health conditions when imposing sentence and the impact of the nature of his custodial environment on those conditions. I have given some thought as to whether, because of his mental health, he falls within the fourth principle discussed in DPP (Cth) v De La Rosa [2010] NSWCCA 194 concerning the relevance of an offender’s mental health. I have considered whether because of his mental health he presents more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: I note that where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public. I have not increased the sentence for that reason here, although I have given it very careful reflection. In that regard I note there is no diagnoses of psychopathy.

61. He has been in custody since 3 September 2020 and the sentence will be back dated to that date to take account of all pre-sentence custody.

62. I have had regard to the objectives of sentencing referred to in s.3A of the Crimes (Sentencing Procedure) Act1999. An offence of shoot with intent to murder is obviously very serious because of the intent involved and because of the discharge of a firearm. When it is committed at 9 pm in the driveway of a carpark of a suburban block of units, it is a particularly serious offence. The community rightly looks to the courts to condemn such offending and to impose very significant sentences to deter not only this offender from engaging in such conduct but also to deter others. In other words general deterrence, the need to send the message to the community that such conduct will not be tolerated looms large when sentencing for such an offence. The maximum penalty provided by the Parliament indicates how serious the Parliament views the offence. The offender’s record for violence is such that personal deterrence must be given significant weight in formulating the appropriate sentence.

63. The maximum penalty and the standard non-parole period have been taken into account as legislative guideposts. I have departed from the standard non-parole period because of my finding of special circumstances and the evidence of his mental health and his custodial conditions.

64. The parties have referred me to a number of cases which I have considered. It must always be remembered that no two cases are ever the same and sentencing remains a task of instinctive synthesis of a number of often competing factors.

65. On the offence of shoot with intent to murder I impose a sentence consisting of a non-parole period of 9 years 7 months and a balance of term of 4 years 11 months. That is a total sentence of 14 ½ years imprisonment. It commences on 3 September 2020 and expires on 2 March 2035. The non-parole period expires on 2 April 2030. The earliest date the offender is eligible to be released to parole on 2 April 2030. Whether he is released to parole that day or on a later date is a matter for the State Parole Authority.

66. The offence on the certificate under s.166 of the Criminal Procedure Act is dismissed as there is no evidence to support it.

Orders

1. Impose a sentence of 14 years and 6 months imprisonment. The sentence consists of a non-parole period of 9 years 7 months and a balance of term of 4 years and 11 months.

2. The sentence commences 3 September 2020 and expires on 2 March 2035. The non-parole period expires on 2 April 2030.

3. The offence on the certificate under s. 166 of the Criminal Procedure Act is dismissed as there is no evidence to support it.

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Decision last updated: 13 February 2023