R v Bradley [2007] VSC 418

2 The circumstances of the offending are, that in late November 2005 you stole a Hyundai motor vehicle and on 12 February 2006, at about 10 in the evening, you crashed that vehicle into the front of a house in Sydenham. A neighbour came out and went over to the car. You were out of the car, or just getting out of the car, which was still running. It was suggested by that neighbour, that you stay in that location, having been involved in the crash.

3 It was around that stage, that you indicated, by opening your jacket and looking down, that you had a handgun in your possession. It is clear, by the manner in which you did this, you intended to intimidate the person to whom you were speaking, so that you could proceed out of the area. Those neighbours, not surprisingly, reported to the police, that not only had there been an accident but, the person involved was in possession of a firearm. Your description was given and broadcast over the police radio, including the fact that you were wearing a black leather jacket. You left the scene of the crash and headed towards the Melton Highway.

4 As you were walking along that road a police car came in the other direction. The officers saw you and determined, that you matched the description of the armed man, which had been given over the police radio. Ross McCann was the driver of the police vehicle and Glenn Saw the passenger. McCann pulled over and was on the police radio, saying that they had located the suspect. Mr Saw got out of the police car, which was almost level with where you were walking, and said to you as he got out: "Keep your hands where I can see them, I want to talk to you."

5 You continued walking, but in response, you reached into your pants and pulled out a gun and started firing. You fired five shots in the direction of Mr Saw. During the firing of those five shots, Mr Saw has dived back into the police vehicle and hunched himself down in the passenger seat. He returned fire in your direction. He fired all of the shots in his revolver, but did so without being able to see, where he was firing or where you were, as he was at that stage taking evasive action, to prevent himself being shot by you.

6 In the course of this exchange, Mr Saw was injured. A bullet grazed his shin. Another two bullets hit his boots, but fortunately, very fortunately, the only injury was the graze. Meanwhile Mr McCann, has got out of the police car and headed down towards the rear of that car. He saw you firing shots, has pointed his gun at you, and then you pointed your gun in Mr McCann's direction. You fired and missed, with one shot.

7 McCann returned fire. Mr McCann believed you had fired two shots at him, but I act upon the basis, that it was one shot. You then left the scene. You disposed of some surgical gloves, some ordinary dishwashing gloves, a balaclava outside 555 Melton Highway at Sydenham Mews. A bit further on, you emptied the spent cartridges from the gun, and threw away the gun itself, near 539 Melton Highway. You also disposed of the black leather jacket, you had been wearing, which upon examination had three unused rounds of ammunition, in the pocket.

8 You were seen by a number of other witnesses and your progress was in fact reported and eventually, you were caught, a number of streets away from the scene of the shooting, shortly before 11 p.m. that evening. You contested the trial, on the basis that you were not guilty of attempting to murder the two police officers, but guilty of a much lesser charge. The jury were not satisfied, that the Crown had proved the required intent, which is of course an intent to kill and accordingly, acquitted you of the two counts of attempted murder.

9 The maximum penalties, for the offences of which you have been convicted or to which you have pleaded guilty are, reckless endangerment of life 10 years; intentionally causing injury 10 years; firearms offence 15 years; theft 10 years. Pursuant to s.89(4) of the Sentencing Act, upon conviction of a count of theft of a motor vehicle, you must also be disqualified from driving for a period of time. I also received three victim impact statements, one from each of the police officers involved and one from the wife of one of those officers.

10 Whilst, I will take into account the majority of the material contained in those statements, particularly as to the impact personally that it had upon them, there is some material that should not have been included, particularly in relation to how I should exercise my sentencing discretion and policy reasons behind that exercise. Accordingly, that material shall form no part of the basis of my sentencing.

11 To a large degree, I am in no better position, in relation to sentencing you now, than I was before I heard your plea, except I am now currently aware of your background and family history. You made no comment in your record of interview, you did not give evidence upon the trial and you have not instructed your counsel in any way, as to the circumstances of this offending. I have no explanation at all, as to why you were carrying a loaded firearm. Why you used that loaded firearm, in the manner that you did, remains entirely inexplicable.

12 It is rare that a member of our community, whether a person with a criminal history or not, uses a firearm in the manner that you did on this night, that is, firing in the direction of two uniformed police officers. At the time of the commission of these offences, you were on parole for murder, having been released on 30 March 2005. Your parole was, not unsurprisingly, revoked on 15 February 2006, some two days after the commission of these offences. I can only presume, that you were attempting to avoid being arrested. If that was your motivation, your actions were extraordinary. They were so extreme. You could easily have been shot and killed, one of the police officers could easily have been shot and killed. The only thing I can say is, it is fortunate that neither you, nor the police were particularly competent, in terms of the aiming of firearms.

13 I understand that your counsel argued to the jury, that you were deliberating aiming for the ground, near where Officer Saw was located. But in light of the verdicts, particularly that relating to Officer McCann, it is my view, that the jury have not accepted the version put forward by your counsel, in that, on the argument put forward, no shots at all were said to be directed in the general area of Officer McCann. I acted entirely on the basis, that the jury were not satisfied beyond reasonable doubt, that you had an intent to kill each of those officers, in whose direction you were firing. It is a very high standard and it is a very difficult intent to prove.

14 You are now aged 38, having been born on 2 February 1969. You are the eldest of two children with a sister now aged 36. That sister suffers from schizophrenia. Your mother was widowed, when your father died, when you were aged about 11 and a half years. It is clear, that you mistakenly believed this occurred somewhat earlier and have stated consistently that you were 10 when your father died. Your father was an alcoholic and a diabetic. It appears, that you were close to your father and his death from a combination of alcohol and diabetic complications, caused you great grief.

15 It appears, that from that time, you were unable to settle to a normal life, and subsequent to your father's death, became involved firstly in minor trouble, including truanting. You had been attending De La Salle College, but upon your father's death, you were transferred to Charles Gardiner High School, which you attended for 12 months. Your mother was unable to maintain the financial commitment of De La Salle. Ultimately, after this 12 month period, you were sent to reside with a fraternal aunt and uncle in Ballarat. You became involved with youth workers in the area, as you continued to be problematic.

16 You were made a State ward, but that is not known at this stage, if that was a result of your offending problems or merely to enable your aunt and uncle to receive some financial assistance, in caring for you. You eventually were sent to Beltara, for offending in relation to the stealing of motor cars, whilst you were still young. You had returned to live with your mother at this stage. You left school relatively young and had little in the way of employment, prior to being arrested and charged with murder. At that time you were 18 years of age.

17 You spent approximately one year on remand and when convicted, you were sentenced by Justice Hampel of this court, to a term of 20 years with a minimum of 16 years. As I indicated earlier, you were paroled on 30 May 2005 and these offences were committed on 12 February 2006. Less than one year, into your four year parole period. You are not due to be released, in respect of the breach of parole, until 2009.

18 Upon your release, you met a young woman, who is apparently a hard worker and a non-drug user, with whom you commenced a relationship almost immediately. You resided at her house in the western suburbs and acquired a mobile phone in her name, saying that you had no ability to obtain things in your own name, because of a lack of credit history. Whilst residing with this young woman, you claim that despite being unemployed, you were quite quickly consuming cocaine, valium, steroids and alcohol in large amounts.

19 For some 12 months prior to your release on parole, you were being counselled by a member of the organisation called Bridging the Gap. You were paroled to reside with your mother in Caulfield and you were required to attend a psychiatrist, as part of your parole conditions. You attended for only three months, as that psychiatrist ceased working and you didn't wish to attend another psychiatrist.

20 Equally unfortunately, you were quite quickly placed on fewer reports and the supervision intended to operate, did not really occur after a few months. I have no explanation, as to how or why, you had a firearm on your person on this night, but there is no doubt that, possession of such a firearm, would be considered a serious breach of your parole.

21 Geoffrey Cummins, a clinical psychologist, gave evidence on your plea. He had prepared a report dated 7 September 2007, which he adopted, during his evidence. Mr Cummins had access to the reports of Bernard Healey, clinical psychologist, and Dr Lester Walton, psychiatrist, which had been prepared for the plea in relation to the murder in 1990. In relation to the report from Dr Walton, at p.2 of that report he stated: "This man remains at a loss to explain his behaviour, apart from his being affected by alcohol and Rohypnol." Dr Walton then quoted you as saying: "It shouldn't have happened but you can't change it." End of your quote.

22 The report continued: "The pattern was one of binge drinking or binges of drug abuse, for weeks on end, alternating substances across each binge." Mr Cummins reported, that you were guarded in your responses to questions and what he referred to as selective, in what you would or would not answer. You declined to answer anything, that would go towards any explanation of your participation in the crimes. The same as with your counsel, who when queried on this, submitted on your behalf, that you exercise your right to silence and accordingly, would not be providing any explanations. But, you had instructed Mr Cummins, that within days of being released you were abusing alcohol and within a week, using Ecstasy.

23 The report from Mr Cummins states that, in the three and a half days prior to this offending, you had been abusing alcohol, Valium and cocaine. You were reported as stating, at p.3 of the report: "I was off my head at the time, I had been on cocaine, alcohol and Valium over the last few days and I'd been drinking again on the morning and I'd used cocaine in the evening, after I'd been out to dinner with some friends. I was probably feeling a bit desperate to get some more cocaine. My memory is quite hazy. I fired some shots hoping they'd back off and I could get away and I didn't want to be shot in the back. I know I'd been on a night club and drug and alcohol binge and I know that I'd used some Ecstasy."

24 There was no evidence called in support of this. No reports from the prison, as to your drug affected state when first incarcerated, or any treatment that you have been receiving, since that time. I find nothing, in the evidence produced in this trial, to support what you have told Mr Cummins, as to your alcohol or drug consumption on the night. The descriptions, given by various witnesses of your actions, do not provide support for you being severely affected, by either alcohol or drugs.

25 The police, who arrested and dealt with you shortly after the commission of the offences, gave no indication of you being affected in any way, by either alcohol or drugs. I am not able to be satisfied, you were either alcohol or drug affected on this night and I most certainly do not accept the suggestion of Mr Cummins, that you may have been in a drug induced psychosis.

26 Mr Cummins agreed, that assessment was based entirely upon your self-reported consumption of drugs and alcohol and that he had not read, or been informed, of any of the evidence relating to your actual condition or behaviour on the night, apart from the fact, you fired these shots. You were unwilling to answer any other questions relating to the offending and in my view, I cannot accept his suggestion, as being a reasonable possibility, in light of your actions subsequent to the shootings.

27 These are particularly worrying crimes. Police officers have a dangerous job within our community. Whilst they are protecting our community from harm, they are equally entitled to full protection, from the courts. The statistics that were tendered on the plea, whilst they may be of some assistance in different cases, are in my view, of no assistance in this case. This is a most unusual case and the circumstances of your offending, reveal a high level of criminality.

28 As I said, these offences of reckless endangerment of life, are at a very high level of criminality for that offence. Whilst it is possible to imagine worse case scenarios, involving reckless endangerment of life, that does not detract from the fact, that these offences fall into, what I classify, as the worst case category. There is a need for general deterrence, of a high order. Protection of uniformed members of the police force going about their duty, requires that there be strong condemnation of the conduct on this night. It needs to be clearly understood. that neither you. nor any other offender. can fire shots at police officers performing their duty on behalf of the public and expect anything other than. a severe sentence.

29 Equally in your case, there is an obvious need for special deterrence. You have previously been convicted of a murder, you were on parole for that murder, yet you chose to carry a firearm, then you chose to use it and to shoot at uniformed police officers. Whilst you did not have the intent to kill them, the jury found that you were reckless, as to the danger of death, in which you placed them. The factors that I must not lose sight of in sentencing you are the principles of totality and my duty, to not impose a crushing sentence. Without those obligations, it is likely that, a court would in fact impose sentences, that may end up as crushing.

30 There is little, in the way of mitigation of penalty, that has been advanced on your behalf. Although it was indicated that you would have been willing to plead guilty to the offences of recklessly endangering life, the Crown did not accept such an offer, but I will take into account, that you were willing to make an offer to plead to those offences, as a matter in mitigation of your sentence.

31 There have been no indications of remorse for these offences, either expressed to the court or to the psychologist that interviewed you, apart from stating: "That he regretted committing the offences of 12 February 2006 and specifically stated, he would not have committed these offences and would still have his liberty, if he had not returned to abusing alcohol and drugs." Those comments indicate to me, that to a large degree, you are still not taking responsibility for your own behaviour and you see alcohol and drugs as an excuse for your conduct, much the same as you did, when you were 18 and charged with murder.

32 The taking of alcohol and drugs is a matter of choice. It is actually a difficult choice, when you have no income from employment, as the amount of money received from any government pension, would not be sufficient to allow anyone to over-indulge, in either alcohol or drugs. That means that you, must have taken some active steps, to keep yourself supplied with those items, and as I said, that makes your involvement in their usage, an active choice.

33 I accept, that you are to a degree institutionalised, but there is unfortunately, little a court can do about this. That will take an effort on your part and those at Corrections, to ensure that an appropriate program is established that will help ease your progress into the every day world, together with rigorous supervision, when you are finally released.

34 I do not believe, that you have great prospects of rehabilitation. Your drug use in prison prior to release, your drug and alcohol use upon release, despite having the support of a hardworking, sober young woman and your mother, together with your possession of a firearm, your refusal to explain any of your behaviour, causes me grave concerns in relation to your prospects of rehabilitation.

35 Accordingly whilst trying to balance all of these factors and for the reasons that I have outlined I direct that you be convicted and sentenced as follows:

36 Count 1, count of theft, 18 months imprisonment;

37 Count 3, reckless conduct endangering death in respect of Glen Raymond Saw, seven years imprisonment;

38 Count 4, intentionally causing injury to Glen Raymond Saw, nine months imprisonment;

39 Count 6, reckless conduct endangering death in respect of Ross Alexander McCann, five years imprisonment;

40 Count 7, prohibited person in possession of a firearm, four years imprisonment.

41 I direct that Count 3 should be the base count and I direct that three months of the sentence on Count 1 should be served cumulatively upon the sentence imposed on Count 3. I direct that 12 months of the sentence imposed on Count 6 be served cumulatively upon the sentence imposed upon counts 3 and 1, and that 12 months of the sentence imposed on Count 7 be served cumulatively upon the sentence imposed on counts 3, 1 and 6. I direct that the sentence on Count 4 is to be served concurrently with the sentence imposed on all other counts. That makes an effective total of nine years and three months imprisonment.

42 Pursuant to s.16(3)(b) all such sentences are to be served cumulatively upon the breach of parole that you are currently serving, unless I find that there are exceptional circumstances for directing otherwise. I find no such exceptional circumstances, but I have accordingly moderated the sentence that I would have otherwise imposed upon you, to ensure that the sentence would not be crushing.

43 I am required to impose a new overall minimum, which includes the breach of parole that you are currently serving. I direct, that you are to serve a minimum of seven years from today. I cancel any license that you hold and disqualify you from being eligible to obtain any licence for a period of five years. I make the retention order pursuant to s.464 ZFB (!), the disposal order, the compensation order and the forfeiture orders. Any other matters?

44 MR BEALE: Your Honour, I believe there was two days of pre-sentence detention.

45 HER HONOUR: I declare that there is a period of two days pre-sentence detention and that such be entered in the records of the court.

46 MR BEALE: Your Honour, in relation to Mr Bradley having made an offer to plead prior to the trial, you said, in your sentencing remarks that he offered to plead to reckless conduct endangering death, in fact he only offered to plead to reckless conduct endangering persons.

47 HER HONOUR: I understood it to be endangering death.

49 HER HONOUR: The benefit of that can stay with him.