DPP v Turner [2014] VCC 1353 (8 August 2014)


IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION	Revised Not Restricted Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES DAVID TURNER

JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2014
DATE OF SENTENCE:	8 August 2014
CASE MAY BE CITED AS:	DPP v Turner
MEDIUM NEUTRAL CITATION:	[2014] VCC 1353

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Livitsanos	Office of Public Prosecutions

For the Accused	Mr A. Burns	Balmer and Associates

1 James Turner, you have pleaded guilty to one charge of theft. The maximum penalty applicable to that offence is 10 years' imprisonment, also to one charge of recklessly cause injury, the maximum penalty applicable to that offence is five years' imprisonment, and also to one charge of reckless conduct endangering person. The maximum penalty applicable to that offence is five years' imprisonment.

2 Your crimes arise out of events which occurred on 12 August 2012 and involved the victim of your offending, Tyson Trewin.

3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as so summarised by the prosecutor and discussed during the course of the plea hearing, consistent with Exhibit A. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing, in particular one of your number firing a gun (I note it was not you).

4 I turn to a brief summary of your offending. Both you and Mr Trewin were known acquaintances. On Friday 10 August 2012, Mr Trewin attended your home and demanded payment of an outstanding debt of $5000 that you had previously failed to repay. This money was payment for 400 ecstasy tablets Mr Trewin had supplied to you in late 2011. Mr Trewin had supplied the tablets to you at a cost of $12.50 per tablet, being 400 tablets for $5000.

5 You told Mr Trewin you did not yet have the money, but said you would pay a portion of the debt by or on 12 August 2012.

6 On Sunday 12 August 2012, Mr Trewin phoned you to arrange a meeting to receive part-payment of the debt. You told him you could meet him near the Epping Hotel during the early evening. Multiple phone calls were made between yourself and Mr Trewin, with Mr Trewin seeking directions from you whilst en route to the rendezvous point.

7 You told Mr Trewin you were driving a yellow Hyundai and instructed Mr Trewin to park next to that vehicle when he arrived.

8 At approximately 7.10 pm on 12 August, Mr Trewin drove a white Audi TT convertible into Coulstock Street, Epping. That vehicle was registered to Mr Trewin's mother. Mr Trewin saw a yellow Hyundai parked towards the western end of that street, and parked his vehicle about three carparks down from that car, as he had earlier been instructed by you. He got out of his vehicle.

9 Mr Trewin then saw a male get out of the passenger side of the yellow Hyundai, and saw that the man was in possession of a black-coloured handgun which was pointed directly towards him. Mr Trewin got back into his vehicle and tried to turn on the ignition to drive away. The male with the firearm (not you, but from your car) began yelling at Mr Trewin saying, "Get out of the fucking car, cunt."

10 A large black-coloured BMW four-wheel drive vehicle then pulled in behind the Audi, effectively blocking Mr Trewin, preventing him from leaving. Two males exited the BMW and joined the male with the handgun and you near the driver's side door of the Audi. (I note your instructions were that you stayed in the Hyundai, such being inconsistent with the prosecution opening).

11 Mr Trewin was dragged from the Audi and thrown onto the asphalt where he was physically assaulted by the males who kicked and punched him to the rear of the head. He sustained a laceration to the back of his head as a result of the assault which required treatment at the Northern Hospital (Charge 2).

12 Whilst on the ground, Mr Trewin saw the male in possession of the firearm point the handgun towards Mr Trewin's thigh, and heard that male tell the others to move back. Mr Trewin feared he was about to be shot. He jumped up off the asphalt and ran as fast as he could towards High Street, Epping.

13 As he ran, Mr Trewin heard a single shot being discharged from the firearm (Charge 3). He kept running and hid in the vacant lot behind bushes in High Street.

14 Mr Trewin then saw the black BMW and his mother's Audi drive fast past him on High Street. Mr Trewin kept hiding for a period of time before running down High Street, where he waved down a marked police car and reported the incident.

15 The Audi motor vehicle was subsequently located some time later, in May 2014, in a condition requiring repair to the value of $5763.20. The prosecution made an application for compensation for the repairs to the Audi, consistent with the receipts produced at your plea hearing. Mr Burns, who appeared on your behalf at that hearing, did not oppose the making of that compensation order. I make the order sought.

16 A crime scene was established around the vicinity of the incident, and a single nine-millimetre fired bullet case was located at the scene by the Ballistics and Major Crime Scene Unit.

17 The yellow Hyundai vehicle was seen on 13 August 2012 at your home in Craigieburn, registered to your father's partner. The vehicle was seized, and various parts of that car were subjected to DNA analysis which matched your DNA.

18 A witness working at the Epping Hotel on that night heard a bang and a short time later heard cars screaming behind him towards High Street. He saw a black BMW, white Audi sedan and yellow Hyundai.

19 As the Hyundai went past, the witness noticed the passenger was wearing a black hoodie, black sunglasses and could have had something covering the bottom of his face. That person looked straight at the witness and stuck his middle finger up at him. As he did so, the witness saw that the person was wearing black gloves.

20 Mr Trewin had prior to this meeting told his partner, Kelly Adams, about this arrangement to meet you and immediately after the incident phoned her and told her what had happened.

21 You were contacted by phone by police on 13 August 2012 and said you would attend St Kilda Road Police Complex for interview the next day. You attended on 14 August and were interviewed. You declined to answer questions in relation to the offence, answering "no comment". To so answer was, of course, your right.

22 It is sufficient for present purposes to say the facts in this case, in my opinion, are very serious and disturbing, in particular the incident involved firing of a gun (I note not by you).

23 The circumstances of this offending strongly suggest you enlisted co-offenders to attend that night. It was clearly your debt to Mr Trewin, however, you arrived with your passenger (who had the gun).

24 You were involved in the assault upon Mr Trewin, whether or not you personally participated. This was very serious offending, as I have said, with your co-offender firing a gun.

25 It was submitted by Mr Burns, no doubt on your instructions, that you had previously been assaulted by Mr Trewin. Even if that had occurred, and there was no evidence before me to support that account, your offending would amount therefore to possible "payback" for that assault and not in my opinion in any way mitigatory of your offending.

26 Whether that was your reason for offending on this evening or if it was to simply avoid repaying the money you owed Mr Trewin, your offending was very serious indeed.

27 You have admitted a prior court appearance on 25 July 2012 at Broadmeadows Magistrates' Court for offences of driving whilst disqualified, stating false name and failing to answer bail. You were, with conviction, fined the sum of $1000. The offending before me is clearly very different from that prior offending.

28 You also have, however, a number of subsequent court appearances relevant to assessment of your rehabilitation prospects. You appeared at Broadmeadows Magistrates' Court on 8 January 2013 on a charge of possessing a drug of dependence and two charges of failing to answer bail. You were, with conviction, fined an aggregate of $300.

29 You also appeared at Broadmeadows Magistrates' Court on 7 August 2013 on four charges of failing to answer bail, two charges of possess methylamphetamine and one of unlicensed driving. On the fail to answer bail charges, you were sentenced to one month's imprisonment, wholly suspended for 12 months. On the remaining charges, you were convicted and fined an aggregate of $2000 and your licence was suspended for 28 days.

30 You next appeared on 23 October 2013 for breach of the suspended sentence by possessing amphetamine. The sentence of one month was wholly restored. For the breaching offence of possessing amphetamine, you were, with conviction, placed on an undertaking for six months to engage in drug counselling.

32 During your plea hearing, it became apparent that since the offending before me, you had re-offended by failing to answer bail on a number of occasions and had possessed amphetamine. The rest of your subsequent court appearances were referrable to offending that occurred prior to the date of that before me.

33 Mr Burns specifically requested I not obtain a report relevant to your participation or otherwise on the CISP program prior to 23 October 2013, nor obtain a report regarding your compliance or otherwise with drug counselling as ordered. I do, however, note as far as I can, that you were discharged from the undertaking as a result of your compliance with it, although no further details were provided.

34 At the time of your plea and sentence, you were on remand for offences involving proceeds of crime, trafficking and possessing drugs. Your partner has also been charged with those offences and has indicated her intention to plead guilty to them, I believe, on 6 August 2014.

35 I was told by Mr Burns your instructors were asking the Director of Public Prosecutions to withdraw the charges against you on that basis and that such was yet to be determined.

36 As I have said, I was told you had spent six weeks on remand for those offences, not specifically told exactly how many days.

37 You have pleaded guilty to the three charges before me and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial. By way of chronology, I note there was a contested committal on 19 June 2013, at which Mr Trewin and his partner, Ms Adams, were cross-examined. It was after committal that this matter resolved into a plea of guilty which you ultimately entered at this court, as I understand it, on 6 May 2014.

38 In the circumstances, I accept your plea of guilty indicates some remorse for your offending.

39 Mr Burns provided a very helpful written outline of submissions and addressed those during your plea hearing.

40 I was told something of your personal circumstances and history. You are currently 27 years of age. At the time of this offending, you were 25 or 26 years of age, thereabouts.

41 Your mother passed away as a result of cancer when you were 12 years of age. Not surprisingly, that had a profound effect upon you, as did the seven years during which she was undergoing various treatments, including chemotherapy.

42 After you completed year 10 at Craigieburn Secondary College, you commenced an apprenticeship in carpentry. You completed that apprenticeship, remaining in steady employment with the same company for approximately six years.

43 When you finished your apprenticeship, you were a valued employee and a productive member of the community, playing football at a local level into adulthood.

44 However, by the time you were 21 years of age, you had begun using drugs, specifically amphetamine.

45 At 21 you moved out of the family home to live with a friend. Sadly, your friend was killed in a car accident, and this again profoundly affected you.

46 Also at that time, I was told your brother, Adam, was diagnosed with cancer, further adding to your distress.

47 You found solace in drug use which became a full habit by the age of 22, smoking approximately four grams of ice a week.

48 Not surprisingly, according to Mr Burns, you could not hold down the job you had had for six years and were fired. Since then, you had only worked sporadically, most often in your father's business, as I understand it.

49 In 2013 you suffered pneumonia and were placed into an induced coma for four days, spending four weeks in the Northern Hospital.

50 Turning to your offending before me, you instructed Mr Burns your reliance upon methylamphetamine meant you were spending time with a group of associates who were "toxic". You instructed you had not associated with the people involved in this offending since.

51 Regarding your offending on 12 August 2012, despite the prosecution opening, you said you did not get out of the car. However, you acknowledged you were responsible for the actions of those who were with you and also acknowledged the wrongfulness of your offending when speaking to Dr Cunningham.

52 There was a report placed before me from Dr Aaron Cunningham, Forensic Psychologist, dated 24 July 2014, who assessed you at the Melbourne Remand Centre on 21 July 2014. Dr Cunningham provided further details regarding your background and history, much of which was contained within the written submissions of your counsel (Exhibit 1).

53 Regarding your relationship with your current partner, Alyse, such had continued for approximately seven months until your recent remand. You were hopeful of relocating to Queensland as Alyse's mother lived there. You instructed Mr Burns you hoped to obtain work in the mines.

54 In Dr Cunningham's opinion, you presented with grief and loss trauma relating to the loss of your mother and best friend. You were assessed as being in the average range of intelligence with no indication of intellectual impairment.

55 You told Dr Cunningham you were "shattered" about your offending and were ashamed at the disappointment you had caused your family.

56 Dr Cunningham also spoke to your father, who confirmed you had experienced significant trauma when your mother died. Also, that the family had lost a close friend a year before her death, and further, your best friend had been killed in a motor vehicle collision. Following these events, you became reckless and abused drugs, nevertheless had a supportive and loving extended family.

57 In the opinion of Dr Cunningham, you increased your methylamphetamine abuse after your friend's death, as a way of escaping your loss and grief. Your offending behaviour before me occurred in the context of escalating methamphetamine abuse and drug-abusing peer associations.

58 You had some protective factors in a supportive father and family and were hopeful of moving to Queensland to work.

59 In Dr Cunningham's opinion, you would benefit from grief and loss counselling and engaging with drug and alcohol rehabilitation. In his opinion, ongoing engagement with employment, psychological and drug and alcohol treatment would reduce your risk and improve your prospects of rehabilitation. It was not clear to me whether Dr Cunningham knew of your entire criminal history.

60 Mr Burns was not relying on any of the principles in R v Verdins & Ors[1]. Based on the material before me that was an appropriate concession.

61 There was also before me a reference from your father, Arthur Turner, dated 14 July 2014. He said you and your brother had grown up in the sporting arena and had never been in trouble in your youth. Your mother contracted breast cancer when you were 5 years of age and her death was distressing for you, as I can well understand. The death of your friend and diagnosis of your brother with cancer also, not surprisingly in my opinion, had a profound effect upon you. He became aware you were involved in drugs in 2011. All of a sudden, he said, your work ethic dropped. He said you were aware of the seriousness of the charges you now faced and had said you were sorry for your offending.

62 There was a reference from Brendon Ryan, national sales manager, Main Freight, dated 21 July 2014, who had known you and your family for approximately 25 years. He described you as respectful to his family and of having a good relationship with his daughters. You had been open with him about the charges and had not sought to blame others. You had expressed deep regret for your actions and stated you wanted to change your future.

63 There was also a reference from Ms Casey Nunn dated 17 July 2014, who said she had known you and the family for some time. Your family was well regarded within the Craigieburn community through association with Craigieburn Football Club and Craigieburn Cricket Club. She had witnessed first-hand the difficulty your family experienced at the passing of your mother. The person she grew up with, being you, was a well-liked and respected young man.

64 Mr Burns relied upon your plea of guilty and timing of it in mitigation of your sentence and, further, he submitted that at the age of 25, you were a relatively youthful offender, in custody (on remand) for the very first time.

65 You are not, however, a "young offender" as referred to in R v Mills[2]. I accept you are still youthful, however, also note you do not come to this court as a person unfamiliar with the criminal justice system. Mr Burns was not aware of your subsequent court appearances at the time he prepared his written submissions. These subsequent appearances for offending since the offending before me, that is the charges that were since before me, is relevant when assessing your rehabilitation purposes.

66 There was no victim impact statement before me. I gather Mr Trewin had been given the opportunity but declined.

67 Regarding your rehabilitation prospects, I have guarded optimism. It seems to me you are yet to completely address your drug use and its link to offending behaviour. Should you participate and engage in the programs suggested by Dr Cunningham, your rehabilitation prospects will improve. I urge you to seek out such programs whilst in custody to ensure as best you can your life does not become a continuous cycle of drug use, offending and gaol.

68 When sentencing you, I must seek to maximise your rehabilitation chances as they may be.

69 I am aware this is the first time you have been ordered to serve a relatively lengthy gaol sentence. You have instructed Mr Burns when sentenced that you intend to seek work in the prison, utilising your trade qualifications. Upon release, you hope to move to Queensland to work in the mines.

70 Mr Burns acknowledged the need when sentencing you to reflect general and specific deterrence. His primary submission was that you should be assessed for a Community Corrections Order which could be imposed, together with a three-month term of imprisonment.

71 His secondary submission, without abandoning his primary submission, was that I impose a shorter non-parole period to enable your return to the community sooner rather than later with support whilst on parole.

72 Regarding your licence cancellation, Mr Burns urged you needed a licence to make a living, and urged that any period of that disqualification not negate your rehabilitation prospects.

73 Mr Livitsanos, for the prosecution, submitted very little weight should be given to the current approximately six weeks you had spent on remand as "Renzella time", as your offending before me had occurred in 2012 (that is, approximately two years earlier) and prior to your recent remand.

74 Turning to disposition for these three charges, the prosecution did not suggest the primary submission of Mr Burns was outside the range of appropriate dispositions. Ultimately, however, it is a matter I must determine based on all relevant sentencing considerations.

75 As well as matters personal to you, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence which is of considerable importance in a case such as this.

76 There is also a need for specific deterrence, as you do have a prior court appearance, although I note not for offending similar to that before me. I am concerned, however, about the escalation in your offending behaviour from your appearance in July 2012 to that before me.

77 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. Much depends ultimately upon your commitment to remaining abstinent from drug use.

78 I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.

79 In my opinion, to impose the primary disposition urged by Mr Burns would not appropriately or adequately address all relevant sentencing considerations, including the circumstances and seriousness of your offending, including taking into account all matters personal to you in mitigation of sentence.

80 When sentencing, I take into account the principles of totality and proportionality.

81 Consistent with R v Renzella[3], I take into account some of that time on remand when imposing sentence today. Calculating the weight to be reckoned as "Renzella time" is not a "mathematical exercise". I have reduced the sentence I would have otherwise imposed to reflect some of that time spent in custody. I propose your sentence, both the head sentence and non-parole period, be reduced by seven days to reflect seven days of your current remand. In my opinion, given the time between the offending before me and your remand and the very different type of offending involved, there should not be any further reduction.

82 If your outstanding matter proceeds, then I expect the sentencing Magistrate would be advised that the seven days of your approximately six weeks that you have spent on remand had already been taken into account and should not be taken into account again.

86 Charge 3 is the base sentence, and I direct that 4 months of Charge 1, and 3 months and 23 days of Charge 2 be served cumulatively upon Charge 3.

87 Before I go further, I digress and note, pursuant to the Interpretation of Legislation Act, it defines a "month" as a calendar month. So I have calculated the 23 days on the basis of a 30-day month which is arguably to your benefit should it in fact involve a 31-day month. So I have deducted seven from 30 to come up with 23.

88 For clarity, the orders of cumulation are upon each other and upon the base sentence.

89 That results in a total effective sentence of 19 months and 23 days' imprisonment and I order you serve a period of 10 months and 23 days before you are eligible for parole.

90 In stating the non-parole period, I have in my opinion imposed a longer period on parole.

91 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these charges following jury verdict, in other words, if you had pleaded not guilty and been found guilty, I would have sentenced you to 4 years' gaol, with a non-parole period of 2 years and 4 months.

92 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 8 days in custody by way of pre-sentence detention (being from 31 July 2014 to yesterday, being 7 August 2014 inclusive) and I direct that that be entered into the records of the court.

93 Pursuant to s.89(4) Sentencing Act 1991 you are disqualified and cancelled from obtaining a licence for 14 months from today's date. In so determining the length of disqualification, I have taken into account the principles in R v Lefebure[4].

99 HER HONOUR: So I have given him seven days, both in the head sentence and in the non-parole period. I have reduced that by seven days. No, I haven't. The non-parole period, it was 11 months originally, that should be 10 months and 23 days. So both the head sentence and the non-parole period, I've basically knocked off seven days, if that makes sense.

101 HER HONOUR: All right. So to repeat that, in case you did not understand, you have to serve as a non-parole period 10 months and 23 days. I originally said 11 months, but I forgot to take off the seven days. I have taken seven days off the head sentence, seven days off the non-parole period consistent with R v Renzella - you don't have to worry about that case - and Heaney, so that is what I have done. I have calculated that on the basis of a calendar month. It is supposed to be 30 days but if it happens to fall in a 31-day month, you have got an extra benefit of another potential day off.

102 I do not know whether that makes sense and it is all clear, but you can explain it to him. Counsel, any other orders, anything else?

106 HER HONOUR: Excellent, thank you. You can remove Mr Turner. Thank you. Thanks very much.

County Court of Victoria

DPP v Turner [2014] VCC 1353 (8 August 2014)