R v Hague [2011] VSC 371

2 You were initially charged with the attempted murder of Michael Beyer, with reckless conduct endangering life, and with other offences.

3 On the day fixed for commencement of your trial, the prosecution filed over a fresh presentment containing two charges of reckless conduct endangering life, one in relation to Michael Beyer and one in relation to Adrian Downs, and one charge of possession of an unregistered hand gun. You were arraigned and pleaded guilty to those three charges.

4 The maximum penalty for reckless conduct endangering life is 10 years' imprisonment and for possession of an unregistered hand gun is, for a first offence, 600 penalty units or 7 years' imprisonment.

5 The circumstances of the offences were as follows.

6 At approximately 7.20 pm on 29 September 2009, Michael Beyer went to the Corio Pizza Shop in Detroit Crescent, Corio. He was driven there by his friend, Adrian Downs.

7 Mr Downs parked his white ute in the angle parking outside the shop. Mr Beyer intended to enter the shop alone to order pizzas whilst Mr Downs waited in his car.

8 As Mr Beyer entered the shop he noticed you standing outside talking on your mobile phone. You were at the pizza shop with two friends. You and Mr Beyer, and your respective families, have known each other for a long period of time. There is a history of bad blood. In 1996 you had been charged with raping Mr Beyer's sister. On 3 March 1997 at the County Court in Geelong you had been acquitted of that charge.

9 While you spoke on your phone, Mr Beyer walked up to you and punched you in the face. The punch caused you to fall to the ground. Mr Downs heard a thump and got out of his vehicle to see what had happened. One of your friends came out of the shop and in response to a question from him as to what was happening, Mr Beyer abused you and called you a rapist amongst other things.

10 Mr Beyer returned to Mr Downs' vehicle and left the scene. Mr Beyer and Mr Downs drove away temporarily from the area in an attempt to avoid further confrontation.

11 After a short period of time, Mr Downs drove back to the shop. He parked outside and Mr Beyer entered the shop to pick up their pizzas. As Mr Beyer returned to the vehicle, he noticed a red Commodore pull up in Detroit Crescent about 20 metres away from him. Mr Beyer could see you in that vehicle. You were seated in the front passenger seat. You leaned over the driver's seat and out of the driver's window and screamed out, "You're dead, dog, cop this!" You had a pistol in your hand. You pointed it towards Mr Beyer and fired one shot. Mr Beyer saw a flash from the front of the pistol and heard a bang.

12 Mr Beyer dived into Mr Downs' vehicle and both he and Mr Downs ducked for cover. You fired a second shot. Mr Downs felt something hit his vehicle. The red Commodore drove away. Mr Beyer told Mr Downs to start the car and follow the red car to obtain the registration details. Mr Downs considered this too risky and instead drove through random streets in Corio. Both men were afraid to either return home or go to a friend's house.

13 The red Commodore then re-appeared and drove alongside Mr Downs' vehicle which was then on the Princes Highway. Both vehicles were heading north towards Melbourne. You were still seated in the front passenger seat. You leant out the front passenger side window and brandished the pistol. You were yelling out, waving the pistol around, and aiming it at the occupants of the other car. Mr Downs braked heavily and succeeded in losing the red Commodore.

14 Mr Downs then drove to Mr Beyer's house. Mr Downs noticed a bullet hole in the driver's side door of his vehicle. He located a spent .32 calibre bullet in the foot well of the driver's side of his vehicle. This was later handed to police and was examined by a ballistics expert. The damage on the bullet was consistent with it penetrating a car door. Photographs of Mr Downs' vehicle show a bullet hole in the driver's side front door both inside and outside at a height just below the internal door handle.

15 A red Holden Commodore owned by you was searched and seized by police on 16 October 2009. Gun shot residue was located in this vehicle.

16 You were interviewed by police on 15 October 2009. You denied shooting at the victims. You told police that after you were punched by Mr Beyer, you and your friends drove off in the same direction as the victims and looked out for their vehicle. You said that as you were unable to find them, you drove back to your place. You told police that once you got home you did not leave your house again that night.

17 You were not licensed to possess a firearm. Police have been unable to locate the hand gun used by you that evening.

19 By my reckoning you were convicted of criminal offences in the Geelong Magistrates' Court while you were every age from 17 to 26 inclusive, except for when you were 24. You were convicted of burglaries, thefts and handling stolen goods. You were convicted of driving whilst disqualified repeatedly. You were convicted of resisting and assaulting police. You were convicted of possession of a prescribed weapon. In 13 appearances between December 1990 and July 1999, you were dealt with by a fine twice; by non-custodial dispositions being suspended sentences, community based orders, and an intensive corrections order 7 times; and sentenced to a term of imprisonment four times.

20 The longest term of imprisonment in that period was a term of 9 months imposed on you on 22 July 1996, when you were 23, for reckless conduct endangering serious injury. A psychological report tendered on the plea reveals that the account you gave of that offence was that police attended your parents' home alleging stolen parts had been used in the refurbishment of a car you were attempting to sell. On the plea I was told that the reckless conduct was your driving at a police officer. I was also told that when you were eventually apprehended there was a physical confrontation with police as a result of which you were hospitalised.

21 In the mid-1990s you were charged with a murder and you spent a considerable time on remand before a nolle prosequi was filed. In 1996 you were charged with the rape to which I earlier referred.

22 You do not have convictions between July 1999 and June 2002.

23 On 25 June 2002, when you were 28, you were convicted in the County Court of 4 counts of theft; a count of handling, receiving or disposing of stolen goods; and counts of being a prohibited person in possession of a firearm; shortening the barrel of a long arm; and possessing ammunition without a licence. You received a total effective sentence of 18 months' imprisonment with a non-parole period of 12 months.

24 On 3 December 2007 you were convicted of possessing ammunition without a licence and were fined.

25 As to the pistol you fired on the evening of 29 September 2009 outside the pizza shop, you obtained that after shots were fired into your home in January 2009 by a person with whom you had a longstanding dispute. That dispute is unconnected to the situation involving Michael Beyer and his family.

26 On the plea hearing a victim impact statement by Michael Beyer was tendered. That statement concludes:

"In summary, because of the incident I feel constantly tired, anxious and fearful for my safety and the safety of my children. My sense of safety and general enjoyment of life have changed for the worse. I have relived the moment of the shooting thousands of times. Each time, I feel shocked, hurt, angry and frightened. I am sad that the memories will continue to plague me in the future."

27 A victim impact statement was also filed by Mr Downs. Mr Downs refers to very significant changes in his life which have come about because of his association with this incident. He feels that he has lost the respect of friends and acquaintances. He feels stressed and is inclined to keep to himself. He feels that he did nothing wrong and yet he has been judged and punished simply because he was there.

28 Michael Beyer's stepfather is named Bell. On the plea I heard evidence from your fiancé and from your mother. They described harassment, intimidation, and assaults to which you and your family have been subjected by the Bell/Beyer family. Intervention orders taken out against members of the Bell/Beyer family by members of your family, and by members of the Bell/Beyer family against members of your family were tendered.

29 On the basis of the evidence led on your plea, I accept your counsel's submission that the Bell/Beyer family have never accepted your acquittal on the rape charge and have pursued you and your family ever since. I also accept that the incident outside the pizza shop where Michael Beyer punched you was part of that ongoing situation.

30 As I indicated to your counsel in the course of the plea, the events described by your mother and your fiancé are unjustifiable, as was Michael Beyer's action in punching you outside the pizza shop. I was told by counsel for the prosecution that Michael Beyer has been charged. There have also been other criminal charges arising out of these matters. Michael Beyer's criminal history was tendered on the plea. Incidents in which he has been involved, which were the subject of the evidence given by your mother and your fiancé, have resulted in criminal convictions. I note that he does not appear to have a significant criminal history apart from those incidents.

32 Your childhood and early adolescence were unremarkable. You have supportive parents. You describe your father as a strict disciplinarian but say that he was never physically abusive towards you. You have one sibling, a sister who has had problems with substance abuse. You have limited contact with her. You report having been sexually abused when around 12 or 13 by a much older man. This does not seem to have resulted in any significant psychological problems. You left school at the age of 17, having completed Year 11. You commenced an apprenticeship as an aircraft mechanic, which you say you could not complete due to reduced government funding. You were very successful when you were young in competitions for model aircraft construction. I have referred to your offending history, which, as far as the adult courts are concerned, begins when you were aged 17.

33 Notwithstanding the periods of time which you have spent in prison, you have established successful businesses in jet ski repair and sales and in hiring out entertainment equipment to clubs and hotels.

34 You have maintained your interest in aeroplanes. You have a full open pilot's licence and you own an aeroplane. You also have an interest in motor bikes.

35 You describe yourself as a light social drinker. You do not abuse drugs.

36 Between the ages of 22 and 31 you were in a relationship with a woman somewhat older than you. You have two sons who were born while you were in that relationship and who are now aged 14 and 7. You maintain a close relationship with them. Your current fiancé is a hairdresser. The two of you have purchased a home together. She is supportive of you. She indicated in her evidence on the plea that once these matters are resolved you intend to move from the Geelong area. The two of you have been together for six years.

37 In the plea on your behalf your counsel put the following matters in mitigation:

(1) You pleaded guilty. You have acknowledged that what you did was wrong.

(2) You were at the time, and still are, suffering from post-traumatic stress disorder as a result of the actions of the Bell/Beyer family.

(3) You are in a strong relationship. You have your own businesses. You support your sons. You have no matters presently pending against you.

(4) Whilst you do have a history of prior offending, it was submitted that there is little in the way of prior violent offending.

(5) You did not start the fight outside the pizza shop, Michael Beyer did. What he did also has to be seen in the context of the ongoing vendetta by the Bell/Beyer family against you and your family. It was submitted that you took the law into your own hands but that in firing the pistol you were not intending injury but rather were intending to frighten Michael Beyer off.

(6) There has been delay in the resolution of these matters.

38 A significant issue on the plea concerned your psychiatric history and current diagnosis. In the course of the plea old reports were tendered from Dr Dennis Shum dated 26 March 1998, Dr Gerald Mathews dated 20 March 2002, and Mr Bernard Healey dated 23 August 1997. Dr Shum and Dr Mathews' reports are short. They indicate that you then suffered from attention deficit disorder, for which you were taking medication named dexamphetamine. Dr Mathews' report was apparently prepared for use in criminal proceedings against you. Mr Healey's report is very detailed. It seems to have been prepared for the purpose of a bail application in relation to the murder charge for which you were on remand in 1996-1997. His report refers to the attention deficit disorder but otherwise, as I read it, does not suggest any psychological disorder.

39 The forensic psychologist, Mr Jeffrey Cummins, saw you for the purposes of your plea in this matter in May 2011. In his report dated 2 June 2011 he expressed the opinion that you have developed a post-traumatic stress disorder in response to being the victim of verbal abuse and physical assaults by the Bell/Beyer family. He described this disorder as "chronic and severe", and as being undiagnosed until now and untreated. He expressed the opinion that this disorder would have compromised your perception and judgment at the time of the offence and that incarceration would exacerbate your symptoms. He expressed the opinion, which he sought to emphasise, that you do not have an antisocial personality disorder.

40 Mr Cummins gave evidence before me on the first hearing date of the plea, 3 June 2011. I determined to request a psychiatric assessment from Forensicare and adjourned the hearing to enable that to be done.

41 The Forensicare assessment was carried out by a psychiatric registrar under the supervision of the Assistant Clinical Director, Dr Danny Sullivan. The Forensicare report is dated 20 June 2011 and was prepared after a two hour interview that day. It states that you have a presentation and history which is consistent with an antisocial personality disorder. The assessing registrar reports that while you described features of anxiety, it was "pertinent to note" that your overall functioning seemed unimpaired, and that she found no evidence of anxiety symptoms of a level sufficient for a diagnosis of an anxiety disorder. The Forensicare report states that incarceration might lead to anger and the risk of depression but expresses the opinion that this could be managed within the prison system, observing that you appear to have coped well overall with incarcerations previously.

42 In response to the Forensicare report, Mr Cummins saw you again and produced a further report dated 4 August 2011 which can properly be described as an answering report. Mr Cummins maintained his earlier opinions.

43 Both Mr Cummins and Dr Sullivan gave evidence before me when the plea hearing resumed. Mr Cummins maintained his position. Dr Sullivan in his oral evidence suggested the differences were not as great as they might appear to be. He said that there were significant anxiety symptoms, which were related not only to this case but also to the conflict with the other family over many years. As I understood his evidence, the reason why Forensicare does not assess you as reaching the threshold for post-traumatic stress disorder is your high level of functioning, demonstrated in particular by the successful conduct of your businesses and your gaining a pilot's licence.

44 A person's psychological condition at the time of offending and at the time of sentence can be relevant to sentence in a number of ways. It may reduce moral culpability, it may affect the kind of sentence which is appropriate, it may moderate or eliminate general deterrence and specific deterrence, it may mean a sentence will be more burdensome, and it may mean there is a risk that the sentence will have an adverse effect on the offender's mental health. The issue for the Court is not how the condition is to be classified, or what psychological label is to be put on it, but rather what the evidence shows about the nature, extent and effect of the condition, at the time of the offence and at the time of sentence. It is necessary to analyse whether, in the particular case, the condition does have any or all of the potential effects upon sentence which it might have.

45 The psychological and psychiatric evidence in your case is such that, on current authority, these issues do need to be addressed. I accept that you suffered, and continue to suffer, elevated anxiety; and that that anxiety was, and is, referrable to a significant extent to the on-going confrontation with the Bell/Beyer family. It does not matter what label is placed upon that condition, but insofar as there is conflict in the psychiatric and psychological evidence I prefer the evidence of Dr Sullivan and the Forensicare report.

46 Turning then to the potentially mitigating consequences, my conclusions are these:

(1) The context of the offending, and in particular the fact that you were reacting to an assault by Michael Beyer, reduces your moral culpability in the sense that your culpability would have been greater had your conduct been unprovoked. The extent to which your mental condition reduces your moral culpability is modest. Your judgment may have been impaired but I consider that you still had the ability to make rational choices and that you knew that what you did was wrong.

(2) Your mental condition does not have any significant moderating effect upon general deterrence. Your mental condition is not of a kind that means you are not an appropriate example to others. I consider that it is of importance that it be made clear that the resort to firearms in a public street will result in stern consequences, no matter how provoked the offender considers himself to be.

(3) Specific deterrence is also still important here. You have a bad history of prior offending, including a history of offending in relation to firearms. You do have a history of prior violence. I accept that violent offences are a relatively minor component of your extensive criminal history, but you have a number of convictions for violence against police and in relation to one of those offences a significant term of imprisonment was imposed. I do not consider that your mental condition relevantly moderates the need for specific deterrence in your case.

(4) On the evidence I have heard I am not persuaded on the balance of probabilities that prison will be more burdensome for you than for others, or that your condition will deteriorate in jail.

47 On the plea, your counsel submitted that in the circumstances an intensive corrections order requiring you to undertake psychological treatment would be appropriate.

48 Counsel for the prosecution submitted that whilst it was accepted that there had been an ongoing feud, you were the one who brought "a pistol into the argument". Counsel emphasised your prior convictions for firearms and ammunition offences. Counsel also referred to the risk that there was to the public in the discharge of a pistol in the circumstances which occurred here. He submitted that there was a need for serious punishment and an immediate custodial sentence. He referred to the fact that the pistol had never been recovered. He submitted that a sentence in the range of 4 to 5 years' imprisonment with a non-parole period of 2 to 3 years was the appropriate range.

49 You have acknowledged that what you did was wrong but I am not persuaded that you are genuinely remorseful. I am not optimistic as to your prospects of rehabilitation, given your history.

50 Subject to the conclusions I have already expressed, I accept the mitigating factors put on your behalf by your counsel.

51 I have considered current sentencing practices.[1]

52 The recklessness in what you did that night was of a high order. Not only did you endanger the lives of Mr Beyer and Mr Downs, but you also potentially endangered other members of the public who happened to be in the area. The discharge of a pistol in a public street is a very serious crime, and you have a bad criminal history. A sentence of imprisonment must be imposed.

53 For the offence of reckless conduct endangering life in shooting a firearm that placed or may have placed Michael Beyer in danger of death I sentence you to 3 years' imprisonment. For the same offence in relation to Adrian Downs I sentence you to 3 years' imprisonment and I direct that one year of that term be served cumulatively with the sentence on count 1. For the offence of possession of an unregistered hand gun I sentence you to 12 months' imprisonment. I make no declaration for cumulation on that count; it will be served concurrently. Thus, the total effective sentence is 4 years' imprisonment. I fix a non-parole period of 2 years and 6 months.

54 I declare that the pre-sentence detention is 15 days. Pursuant to s 6AAA of the Sentencing Act I state that but for your guilty plea I would have imposed sentences of 5 years, 5 years and 18 months, and a total effective sentence of 6 years with a non-parole period of 4 years and 6 months.

[1] The material available is limited. There are no statistics complied by the Sentencing Advisory Council. I have considered older statistics compiled by the Department of Justice referrable to the period 2000/1 - 2005/6, and I have also considered R v Rudd [2009] VSCA 213; DPP v Cook [2010] VSC 17; R v Bradley [2010] VSCA 70; Hennessey v The Queen [2010] VSCA 297; R v Bedson [2011] VSC 101; Trajkovski v The Queen [2011] VSCA 170; DPP v Hills [2011] VSC 238; and R v Finn and Finn [2011] VSC 253.