R v Elliott & Comfort [2003] VSC 292

Supreme Court of Victoria|2003-08-08|Before: Teague J

Sentencing - ten offences - recklessly causing serious injury, threat to kill and armed robbery included - police firearm removed in struggle resisting arrest - firearm fired injuring policeman - firearm then used threateningly on another policeman - busy location - firearm then used including to rob to obtain getaway motor bike - serious violent offender - prisoner serving sentence - concurrency and cumulation - effective additional 11 years prison. Sentencing - assist offender - substantial assistance by way of accommodation, transport around Melbourne, transport to Queensland and more - 2 years imprisonment - suspended as to 20 months.

The fourth of those ten offences is the one that I treat as the most serious. It is of recklessly causing serious injury to Constable Hollis in Lygon Street, Carlton on Friday, 4 January 2002. You caused the serious injury to Constable Hollis when you fired the police pistol which you had just removed from his holster.

A few minutes before that happened, Constables John Hollis, Justin Bathurst and John Steenson were just three young policemen going about their normal duties. They were doing what they had to do, what the public expected them to do. They were questioning you. The questioning was taking place in a laneway off Lygon Street, between two busy restaurants. There were many people watching the process. The questions were about a motor bike, that was nearby. You had ridden that motor bike to Lygon Street on 4 January 2002.

The motor bike was one that you had stolen in mid-December 2001. At that time, you were in breach of the conditions of bail granted to you some weeks earlier. A warrant for your arrest had been issued. The bail had been granted relative to a series of charges that were ultimately dealt with by Judge Anderson in the County Court on 28 April 2003. His Honour then imposed an effective head sentence of 5 years and 9 months with a non-parole period of 4 years. His Honour gave a direction as to pre-sentence detention of 761 days.

Attached to the motor bike that you stole in December 2001, when you rode on 4 January 2002 to Lygon Street, was a number plate and a distinctive titanium exhaust pipe. You had stolen both items from different owners in December 2001. The owner of the distinctive exhaust pipe lived off Lygon Street. He had a special liking for the exhaust pipe. Moreover, you had stolen it in circumstances intimidating to him. Within days, and in Lygon Street, he had caught up with you and the motor bike with his exhaust pipe. You evaded him, but he was able to get photos of you with the motor bike. He left the photos with Constable Steenson at the Carlton Police Station.

On 4 January 2002, you rode into Lygon Street on the motor bike. You parked it outside Café Trevi. It was seen there by the owner of the exhaust pipe. He contacted the police. Constables Hollis, Bathurst and Steenson went to Café Trevi. It was their duty to investigate. It was a Friday night. It was around 8.20 p.m. They approached you inside the restaurant. They invited you to move outside.

You went into the laneway with the three constables. Asked about the motor bike, you denied any knowledge of it. You were told that you were under arrest. You moved to get away. You were taken by the arm. You resisted. You and the three policemen went to the ground. You went into a position on your hands and knees. It was a move indicative of your experience in like situations. You were strong enough in that position to withstand the police attempts to place handcuffs on you. A struggle ensued. In the struggle, a police baton was used to strike you several times. In the struggle, you got a hand on the holster of John Hollis. You extracted his police-issue revolver. The policemen, realising that you had the gun, tried to get it off you. Constables Steenson and Hollis held, or tried to hold, the barrel of the gun. You fired the gun. John Hollis was struck by the bullet in the right elbow. He moved back from the struggle. You raised the gun. You pointed it at the head of John Steenson, who was still holding on to the barrel. You said: "Let go or you're fucking dead." You struck John Steenson to the back of his head with a clenched right fist. You broke his grip on the barrel. You pointed the gun at Justin Bathurst as you left the laneway and ran along Lygon Street. You pointed the gun at other policemen as you ran to the Grattan Street intersection.

There, you approached the driver of a car. You pointed the gun at the driver. You demanded that the driver get out of the car. The driver seemed not to understand and did not move, although a female passenger and two children got out of the car. You then turned your attention to the rider of a nearby motor bike. You pointed the gun at the rider. He dismounted, allowing you to mount. You rode off at high speed. You later abandoned the motor bike in Clifton Hill.

You knew the police would make every effort to find you. You needed assistance. You called on your friend of a couple of months, Peter Comfort. He helped you in Melbourne in various ways. He helped you to get to Queensland. You then chose to return to Victoria, where you were promptly arrested.

And so I turn to you, Peter Comfort. You have pleaded guilty to the crime of assisting Jason Elliott to avoid apprehension knowing him to have committed a serious crime. You answered Jason Elliott's call for assistance. There were a number of stages to the provision of help. Initially, on the Friday night, you knew little other than that your friend was in trouble. During the Saturday morning, you read an article in the Herald-Sun about the shooting. You questioned Jason Elliott. He agreed that he had been the gunman at Lygon Street. He told you that the police had been set on killing him and that he acted only in self defence. You chose to believe him.

You continued to provide assistance to Jason Elliott in a variety of ways. You provided for him accommodation in, and transport around, Melbourne. You arranged for him to be given a lift to Queensland. Before he left Melbourne, you saw the gun. That did not impede you continuing to provide assistance. After he left Melbourne, you continued to help him. You kept in touch with him by telephone. You did his bidding. You contacted his friends. You made arrangements as to mobile phones. You tried to get in what he said were his property and his debts.

I turn now to the background of you, Peter Comfort. The detail is set out in the report of the psychologist, Mr Healey. You are 33 years of age, having been born on 2 August 1970. You have prior convictions. They are of little relevance. You live with your mother. Your father died two years ago in circumstances which led to a man standing trial in this court. Your father's death seems to have led to a period of instability in your life after a long period of relative stability. Before he died, you had a good job and were in a relationship. After his death, you left both and turned to the night club scene. Your choice of that scene led to a change in perspective for the worse. In that scene, illegal drugs are readily available, and you resorted to them. In that scene, a certain kind of friendship is easily made. It was there that you met Jason Elliott, and the two of you became friends.

I accept what Mr McKenzie put to me to the effect that the assistance provided by you was given out of a sense of misguided mateship. You were naïve to an extreme. You had chances to pull out, but you continued to provide help. You helped over several days. You helped in many ways. Your help could only have caused the police and hence the community much extra cost and inconvenience. General deterrence is a significant factor in determining a proper sentence in those circumstances.

There are a number of mitigating factors. On apprehension, you made full admissions to the police. Further, you have pleaded guilty. Moreover, you indicated that you proposed to do so at an early stage. You have supportive friends, as appears from their letters tendered as exhibits.

Given the extent of your assistance, and the seriousness of the situation, as known to you, I am satisfied that only a prison sentence is appropriate. I impose a partially suspended sentence. You are sentenced to 2 years in prison. 20 months of that 2 years is suspended, for a period of 2 years. I declare 2 days pre-sentence detention. I direct that that be recorded.

I turn back to you, Jason Elliott. There were many witnesses to what was done to you and as to what you did in, or just off, Lygon Street. It is always the case that with many witnesses, you get many perspectives. From the many accounts, certain things are clear to me. Contrary to your later comments to Peter Comfort, there was no prospect of your being killed. Indeed, the only risk you ran of injury stemmed from your own foolhardiness. The three policemen were acting reasonably and sensibly. How they chose to react to you is deserving of nothing but praise. How you chose to react to them is deserving of nothing but condemnation.

It is an aggravating factor that you acted so grossly inappropriately in Lygon Street on a Friday night. There were dozens of people in the near vicinity. You knew that, but it seems not to have fazed you, as you first fired and then brandished the gun. What was all important to you was that you should get away. The damage you might do to others was of no or little importance. You had to get away at any cost. If police were injured, that was just part of the price they had to pay for getting in your way. If people nearby were terrified, that was part of the price they had to pay for being around when you wanted your way.

There is a troubling mix of arrogance, foolhardiness and sheer stupidity attaching to your crimes. It was as if you were asking for trouble. That was so in your going to Lygon Street at all. You knew a warrant was out for your arrest. You were riding on a stolen motor bike. It was a sign of extreme arrogance that the motor bike had on it the distinctive exhaust pipe that you had stolen from just up the road. Of course it was both illegal and stupid not only to take on the three policemen, but then to go for the gun, and then to fire the gun. It was not illegal, but it was patently arrogant and stupid, having been assisted to evade the police and get out of Victoria, to come back within a couple of days.

You spoke to the psychologist, Mr Cummins, about your use of certain illegal drugs, particularly cocaine. The effects of cocaine were referred to at length by Ms Sutherland on the hearing of the plea. Her focus was on the drug's alteration of your perceptions of events. I do accept that there is some weight in what she put to me. There is also weight in what Ms Pullen put to me. In the hours before or after the events in Lygon Street, you spent quite some time with Peter Comfort and four women. None of the five referred to your appearing drug-affected. Even though I accept that cocaine had a role in your failing to realise the gross criminality of your actions, that does not make them more excusable. You made the choice to keep taking illegal drugs. You then chose to grossly terrify and harm many people. You must bear the consequences.

I have read the four victim impact statements in this case. I have taken time to read them carefully. It is clear that your irresponsible acts have caused serious short and long term damage to each of them, and particularly to John Hollis. The statements make for depressing reading. Your crimes have shattered lives. Your crimes have left lasting physical and emotional scars. It is in the nature of the process that the problems of victims are necessarily given only a passing reference during the sentencing remarks. But the extent of the past and continuing pain and damage is all too apparent.

The details of your background are set out in the report of Mr Cummins. You are 31 years of age. You were born on 29 April 1972. You were raised in a dysfunctional family setting. At times, you have been close to your father, who is now dead, and to your mother, who is alive but apparently keeps her distance. Your father seems to have set you a pretty poor example.

I accept that there are a number of mitigating factors to be taken into account in sentencing you. You have pleaded guilty to the ten offences. You were prepared to do so at an early stage. There was no premeditation to your actions in Lygon Street. But when you reacted, you did so in a way that showed a gross disregard for anyone else but yourself. I do accept that you are not to be written off as having no prospects of rehabilitation. I say that, whilst acknowledging that your prior convictions are appalling. At times, you have chosen to live a life of lawlessness. During those times, you have left a trail of victims. On the other hand, I have noted that, for a period of 3 years or so in the late 1990's, you showed a capacity to remain law-abiding. You showed indications of a potential for rehabilitation. You stayed at work. You were in a relationship. I have also noted that, in prison, you appear not to be a problem. On the contrary, it seems that you fit in well.

Ms Sutherland has made an apology on your behalf. Depending on circumstances, an apology may be sincere or hollow. And the spirit in which the maker makes it may not be the spirit in which it is received. Any apology made in the context of a plea in mitigation is likely to be viewed with some scepticism. It would have been more convincing if the like sentiments had been expressed earlier, as when you spoke with Mr Cummins. However, I do not disregard your apology, given that there have been times when you have chosen to act in a law-abiding way. I treat it as an indication of remorse.

I turn to the subject of the application of the serious offender provisions in the Sentencing Act. I have read the written submissions of Ms Pullen and Ms Sutherland, and the material incorporated with the first submission of Ms Pullen. Any threat to kill, made when the person threatened is made to look down the barrel of a gun, must be a terrifying experience for the person threatened. It could only be more so, when the gun has just been fired causing injury to another person. There is not now an issue whether, as to count 6, I should sentence you as a serious violent offender. I proceed accordingly. I propose to apply established sentencing principles, including of proportionality and totality. I direct that there should be substantial partial, but not total, cumulation as to Count 6 relative to other sentences, given that the threat to kill Constable Steenson occurred in the course of one episode.

I have read the sentencing remarks of Judge Anderson made on 28 April last. Doing so was appropriate given the need for me to observe the principle of totality. It is also appropriate that I give no direction as to pre-sentence detention, given that he has done so, and has explained in detail how his figure was arrived at. It is also appropriate that, respecting the principle of totality, I allow concurrency not only as between the ten offences before me, but also as between them and those that were the subject of Judge Anderson's sentence.

I impose a sentence of imprisonment for 7 years on count 4.

I impose sentences of imprisonment, with concurrency periods on count 4 as follows:

With cumulation, the effective total is eleven years. I order concurrency as to three years with the sentence imposed by Judge Anderson. The sentence imposed by me adds eight years to the head sentence set by Judge Anderson. The overall head sentence is thirteen years and nine months. I set a new non-parole period at an additional seven years on that set by Judge Anderson. The new non-parole period is eleven years.

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