R v Madex [2020] VSC 145

1 On 16 March 2020 you, Rodney Charles Madex, pleaded guilty to an indictment containing two charges. Charge 1 is conduct endangering life, contrary to s 22 of the Crimes Act 1958. The maximum penalty provided for this offence is 10 years' imprisonment. The second charge is possession of an unregistered general category handgun, contrary to s 7B(1) of the Firearms Act 1996. The maximum penalty for this in your case, as this is a second offence, attracts the higher maximum penalty of 10 years' imprisonment or 1200 penalty units.

2 The circumstances of your offending are described in the prosecution plea opening dated 20 March 2020.

3 In short compass, your offending occurred on 2 January 2019 at your home in Glengarry North in Bickertons Road, where you were living with your daughter, Tammy Madex, who is the victim in this matter.

4 On the afternoon of 2 January 2020, you attended the Glengarry Hotel where you drank a couple of glasses of beer. You then returned home. Tammy was home when you arrived, and you began to drink alcohol together.

5 Throughout the afternoon, you and Tammy had a number of minor disagreements. At one stage, you asked Tammy 'what's the problem?' and she responded 'there is only one big problem, and it's me. Get a gun and a bullet and I'll fix it'. During the evening, Tammy repeated those comments. You said to Tammy, 'if you want to do it so bad, fine, I will get one for you'.

6 You and Tammy continued to drink alcohol throughout the evening.

7 At about 8:30pm, your son became aware of a comment posted on Facebook by Tammy. The post read, 'isn't it great when your dad tells you that you're the most hated member of the family?'.

8 Shortly after 10:30pm, you entered Tammy's bedroom holding a loaded firearm. You stood about 1 to 2 metres away from Tammy. Tammy saw the barrel and said to you, 'Oh yeah good on you'. You then discharged the firearm in Tammy's direction. The bullet struck Tammy on the right-hand side of her forehead.

9 You then left the property. You did not call 000; instead you called your son Kurk and told him, 'I nearly killed Tam'. You sounded rattled as though you were in shock. Kurk told his sister, your other daughter, Tina Madex, that you had nearly killed Tammy. Kurk then drove to Bickertons Road. When Kurk arrived at the Bickertons Road property, he saw you outside and pacing around. You told him that you shot 'Tam in the head' and that you had to go. You got into your car and drove away in the direction of the back of the property. You called Tina again and asked her to call 000, and to find out where the ambulance was.

10 At about 10:47pm, you called your daughter Tina and told her that you had shot Tammy. You asked her a number of times to call an ambulance, which she did. Tina said you sounded extremely distressed and that you were crying. You told Tina a number of times to call an ambulance. You called Tina again at 11:02 and 11:16pm.

11 At around 11:37pm, Sergeant Findlay called you. You appeared to be upset and told him, 'I thought I had killed her'. You were instructed to surrender yourself and you agreed to return to meet with police. You arrived shortly after from the bushland to the north of your property, where you were arrested.

12 Just after midnight, Tammy was taken by ambulance to Latrobe Regional Hospital in Traralgon.

13 You were born on 22 March 1951 and aged 67 years old at the time of the offending. You are now 69 years old.

14 You attended a local technical school until Year 9, when you left to commence working. You report a continuous work history since that time, including employment as a tree-feller, excavator operator, bulldozer operator, and truck driver.

15 You have four children, five grandchildren, and one great-grandchild. You were married to your wife, Sharon, for over 40 years, before her death in August 2017. Her death had a significant effect on you and your family. Following her death, you did not engage in any grief or trauma counselling, and instead increased your drinking.

16 You instructed that you were able to control your drinking insofar as you were able to continue work. However, when you were not working you would consume significant amounts.

17 You have been assessed by Dr Douglas Bell, psychiatrist, as having major depression over the past 17 months, associated with heavy alcohol abuse as a maladaptive coping response. This is in circumstances of unresolved grief following the death of your wife of over 40 years'.

18 You are currently prescribed anti-depressant medication, Mirtazapine, and have been compliant with taking it.

19 On assessment by Dr Bell, on 11 March 2020, your depression symptoms were assessed as being in remission.[1]

20 Your criminal history dates back to 1970, including driving offences and resisting police, assaulting police, using threatening and insulting words. I will return to the earlier offending.

21 More recently, on 20 January 2017, you were convicted of possessing an unregistered general category handgun (two counts), possessing a category B longarm without a license as a non-prohibited person, possessing a category A longarm without a license as a non-prohibited person, failure to store a category A/B longarm correctly (two counts), and failure to store category A/B longarm ammunition correctly (two counts) ('the January 2017 firearm offences'). You were sentenced to a 12-month community correction order ('CCO') for these offences. The CCO required you to complete 60 hours of unpaid community work which you did.

22 On your behalf, your counsel urged me to sentence you to time already served and then place you on a community correction order.

23 It was submitted that the following matters were significant in relation to your sentencing:

(a) Your plea of guilty;

(b) The timing of the guilty plea;

(c) Your remorse;

(d) Related to the points above, the delay, in that you have been in custody for over 14 months, away from your home and family, awaiting trial for attempted murder (a charge with a 25-year maximum), with your future and likely penalty being uncertain;

(e) Your good prospects of rehabilitation;

(f) The effect and impact of COVID-19 on you;

(g) Strong family support; and

(h) Victim impact and wishes of the victim.

24 The Prosecution submits that your offending is a very serious example of reckless conduct endangering life due to the fact that you discharged a loaded firearm in close proximity to the victim within the confines of a small room. The victim sustained an injury to her forehead, with approximately 30 pellets being removed from the outer vault of her skull requiring surgery, and leaving her with scarring and numbness to her forehead. The offence occurred within the victim's home and involved an element of family violence, as you endangered the life of, and caused harm to, Tammy Madex (your daughter).

25 The Prosecution notes that even though Tammy Madex has declined to make a Victim Impact Statement, she has suffered considerable distress and trauma as a result of the offending.

26 It is submitted by the Prosecution that while you have some degree of remorse, the prison medical records do not reflect any concern shown by you for the victim's welfare. It is submitted that the records demonstrate a lack of insight or remorse on your behalf.

27 In relation to the effect and impact concerning COVID-19, the Prosecution submits that there is no documentary support from Corrections Victoria in order to assist in making an assessment of what preventative measures are being put in place in the prison system. It is conceded that undergoing a term of imprisonment may be more difficult for you as a result of COVID-19 and your age.

28 I will firstly deal with the objective gravity of your crimes. This was a very unusual set of circumstances. Your action in discharging the shotgun so close to Tammy was extraordinarily reckless and caused Tammy injury. It is remarkable that Tammy did not sustain more serious permanent injury or death as a consequence of your actions.

29 You had a shotgun at the property which you retrieved from a wardrobe in the house. The gun was already loaded when you retrieved it. You reported that you had had the gun for years. You said that the reason you own the gun was that you kept it with you when travelling up north because there are lots of scary people up there. You used the gun for hunting snakes.

30 Insofar as your family is concerned, you have strong family support and they would have been in court to support you but for restrictions on the number of people who are allowed to be in the courtroom. I have received some character references[2] indicating that there will be significant ongoing help and support for you upon your release. Tammy Madex, the victim, in particular remains supportive. I take into account the forgiveness of Tammy Madex and your family, in terms of your future and rehabilitation. Further, insofar as the effect of this offending has had on them, it seems they have coped and have a strong desire to see you home and, as I said, to support you. The effect that this offending has had on them is not as severe as it might otherwise have been.

31 Your offending is in a technical sense a matter of family violence, in that there was a family relationship of father and daughter. There was no intentional violence on your part against Tammy. You did not use the firearm to deliberately threaten to harm Tammy. You wanted to scare her and stop her from self-harming.

32 You had the capacity to kill your daughter with the slightest movement of the gun. I accept that your unwise decision to have an unregistered hand gun in your possession was for the matters you have reported. You told police that you intended to scare Tammy to dissuade her from harming herself. Despite this explanation, the offending is indeed serious and calls for general deterrence, denunciation, and appropriate punishment. It is a classic example of why governments and the public are so concerned about guns, and with what can go wrong in situations where guns are in the community, in the possession of someone who is distressed and intoxicated, as you were.

33 It would seem your actions were quite spontaneous and difficult to understand. Your counsel told me that your wife's death in August 2017 has had a profound effect on you. She was described as the glue that held the family together. Following her death, you did not engage in any grief or trauma counselling, and instead increased your drinking.

34 While in custody, you have been assessed as having major depression over the past 17 months following your wife's death, associated with heavy alcohol abuse as a maladaptive coping response.[3]

35 In custody, you have engaged in psychological treatment and complied with prescribed medication for your mental health issues. An assessment conducted on 11 March 2020 indicated that your symptoms had been assessed as being in remission.[4]

36 I consider that your prospects of rehabilitation are guarded but far from extinguished. I would go as far as to say that your prospects are reasonable for a combination of reasons. You have abstained from alcohol for 14 months. In addition, you have been receiving psychological treatment for 14 months and I am told that you accept you have a need for ongoing assistance and treatment. On 11 March 2020, Dr Bell recorded your awareness that if you return to drinking alcohol, this would again place you at risk of behaving in a way that will get you into trouble. He noted that you were able to engage in a motivational discussion about the precipitants of your drinking alcohol, the consequences, and how you can stop yourself from doing so. He noted that you had reflected on how much worse the situation might have been if you had accidentally killed your daughter when you discharged the firearm.[5] Matt Hodges, Forensic Drug and Alcohol Clinician, considers that your capacity to experience guilt and acknowledge personal responsibility are intact.[6]

37 Related to your prospects of rehabilitation, you have been working as a billet in prison and completed a number of certificates.

38 You now have a greater understanding and insight into the consequences of your alcohol abuse and report that it is your intention to abstain from drinking alcohol in the future.

39 Your criminal history is of concern. On 20 January 2017, you were convicted of the same firearm offences as those currently before the court. You received a community correction order for 12 months for that offence. This is concerning as you offended a second time despite the previous conviction.

40 I am informed that the 20 January 2017 firearm offences arose in circumstances where police searched your property and located a number of firearms. The firearms were not used for any malicious purpose. Nonetheless, you did not have a licence for the firearms, and they were not legally stored and secured. The firearm used in the current offending before the court was not located in 2017. For whatever reason, and despite a CCO being made in relation to the January 2017 firearm offences, you kept the firearm on your property.

41 The vice in just having the illegal firearm in your possession is that it gave you access to a dangerous and deadly weapon which you ultimately used in a drunken state to shoot your daughter.

42 You have reported that there are no other firearms on the property. Dr Bell noted, based on an interview conducted on 26 February 2020, that you had 'self-recrimination +++' for not having gotten rid of the gun long before the incident.[7] At the same consultation, Dr Bell noted that you are angry because you were unable to be out with Tammy to support her.[8]

43 You have shown a disregard for the seriousness of your past firearm offences. The CCO you received in January 2017 did not help you form any insight or deter you from having firearms illegally in your possession.

44 However, I accept that this incident regrettably has acted as a 'wakeup call' as your counsel put it. I consider that you now have real insight into why you cannot have firearms in your possession.

45 For completeness, you have also received custodial sentences, albeit for short periods, for a range of driving offences dating back to 1970, and for police assaults using threatening and insulting words. Alcohol use features in your prior criminal history. There is a 20-year gap between your early criminal history and the January 2017 firearm offences.

46 You are now an older man and as I said the bulk of your criminal offending dates back 20 years or more. I accept that you have a strong desire to ensure you do not offend in the future. Your offending revolves primarily around your alcohol abuse. You have now engaged with treatment and counselling, it seems for the first time, and have shown good progress in treating your depression and alcohol abuse problem. This bodes well for your prospects of rehabilitation.

47 I accept that you are intensely remorseful about the offending and I take this into account. You have expressed remorse directly to Tammy Madex. It has been reported by a professional in March 2019 that you 'presented with high levels of remorse and regret regarding [your] alleged behaviour'.[9] You were clearly remorseful immediately after the offending and took steps to make sure Tammy got help.

48 I have had the benefit of reviewing your prison medical file. The Prosecution submits that the file reveals that you lack remorse, and that you expressed anger at the police for being charged with attempted murder and with the delays in the legal process. I do not accept this. The file does reveal that you were angry with police and the delays. However, this does not diminish your remorse for your offending and the consequences for Tammy and her family.

49 You pleaded guilty to charges of reckless conduct endangering life and firearm offences on 13 March 2020. However, you first offered to plead guilty on 27 March 2019, before the first committal mention. The plea of guilty has significant utilitarian benefit. Not only were family members spared reliving the night, but a large jury panel was not required. Importantly, current restrictions mean the matter would not have been determined as a trial for some time, at least another six months, maybe more.

50 The plea is also indicative of an acceptance of responsibility and remorse.

51 You are now 69 years old. An important and unprecedented factor which I take into account is the impact of COVID-19 and the risk that it poses to you, if you are sentenced to prison. Your age of 69 years places you in a higher risk category to other people. I am told that if you are not in custody, you would reside on a 60-acre rural property and could self-isolate. This is not an option whilst in prison. I am told that the possibility of contracting the virus weighs heavily on you and makes prison a more onerous prospect for you, than it does for someone younger. I am satisfied that your age, in combination with the risk of contracting COVID-19, is a significant factor and one that I have taken into consideration in determining your sentence.

52 I do not consider that the lack of information about preventative measures which may be put in place by Corrections Victoria alters my view. Mr Madex, you can clearly achieve a more reliable and effective form of self-isolation in the community, particularly given your living arrangements, compared to being in prison. This is not mere speculation on my part.

53 The parties referred to comparable cases, and a sentencing snapshot for charges 1 and 2 was also provided. I have taken those comparative sentences into account, but note regarding the comparable cases that the outcomes largely reflect the diverse factual circumstances behind each case.

54 I accept that general deterrence, denunciation, community protection, and just punishment are important considerations in this case, as in most cases that involve the use or carriage of firearms. I also accept the Prosecution's submission that specific deterrence has relevance to you given your poor response to the CCO given on 20 January 2017.

55 As I have said, your actions were very reckless and serious. On the other hand, I accept that you have deep remorse for your actions and reasonable prospects of rehabilitation. Rehabilitation remains an important sentencing objective.

56 For that reason, I had you assessed on 24 March 2020 for your suitability to undertake a community correction order. You have been found suitable to do so according to the assessment that I have now received.[10]

57 In all the circumstances of this case, I am persuaded that the appropriate sentence is one that combines a sentence of imprisonment with subsequent release on a community correction order. I consider that such a sentence will satisfy each of the relevant purposes of sentencing that I have referred to above. This combined sentencing disposition offers the benefit that, when you return to the community, you will be expected to undergo therapeutic programs to ensure that you do not return to criminal offending. There will of course also be an element of supervision.

58 As explained by the Court of Appeal in Boulton v R,[11] a combined community correction order and imprisonment is not a light sentence option. It has been recognised that, in some cases, it is appropriate to impose a community correction order for relatively serious offences. Even in cases of objectively grave criminal conduct, some or all the punitive, deterrent, and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment coupled with a community correction order, with conditions tailored to the offender's circumstances and the causes of the offending. The CCO regime is designed to allow courts to fashion a sentencing order that addresses the underlying cause of the offending. In your case, your mental health and alcohol abuse, and your possession of an unregistered firearm are central matters that need to be addressed by you when you return to the community.

59 I have decided for reasons of convenience and practicality to impose an aggregate prison sentence under s 9(1) of the Sentencing Act 1991 ('Sentencing Act') on charges 1 and 2. This is because they are both founded on the same facts, or are part of a series of offences of the same or a similar character. The term 'aggregate sentence' means that the court can fix one penalty which attaches to more than one charge, rather than a separate penalty for each. I will impose an aggregate prison sentence to be followed by an aggregate CCO.

60 In considering the terms and conditions of the CCO, I have had regard to s 48A of the Sentencing Act.

61 In this case, given the unprecedented and unique circumstances due to COVID-19, coupled with the considerations that I have set out above, including the objective gravity of your offending and sentencing purposes, and in particular your age and the risk to you in not being able to properly self-isolate, I consider that a community correction order with custodial sentence is in the best interests of the community, and in your best interests.

62 Before being sentenced to a sentence which includes a community correction order, you will be asked whether you consent to that order. I note that you have already signed a consent to the making of an order on 24 March 2020. Before indicating consent, you need to be aware of the consequences of contravening a CCO. The term of the CCO that I propose to impose is two years. The CCO conditions that I propose are as follows:

63 The mandatory terms of this community correction order under s 45(1) of the Sentencing Act are that:

(a) you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

(b) you must comply with any obligation or requirement prescribed by the regulations;

(c) you must report to, and receive visits from the Secretary during the period of this order;

(d) you must report to the community corrections centre specified in the order within two clear working days after the order coming into force;

(e) you must notify the Secretary of any change of address or employment within two clear working days after the change;

(f) you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary; and

(g) you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.

64 The additional conditions that apply to this order for its duration under ss 48D, 48E, 48G, and 48K of the Sentencing Act are that:

(a) You must undergo any assessment and treatment (including testing) for alcohol abuse or dependency;

(b) You must undergo any assessment and treatment (including testing) at a residential facility for withdrawal from or rehabilitation for alcohol abuse or dependency;

(c) you must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or a residential facility;

(d) you must undergo any mental health assessment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;

(e) you are to be supervised, monitored and managed as directed by the Secretary;

(f) you must reside at 70 Bickertons Road, Glengarry North, Victoria 3854;

(g) you are to attend before this Court for review of your compliance on or about 24 September 2020 or such other date as the Court specifies.

66 On charges 1 and 2, you are sentenced to 449 days imprisonment, to be followed by a community correction order for a period of two years beginning from the date of your release from prison.

67 I declare 449 days as pre-sentence detention already served, up to 26 March 2020.

68 Pursuant to s 6AAA of the Sentencing Act, I indicate that if you had not pleaded guilty to these offences, then the sentence I would have imposed on you would have been an aggregate sentence of three years, six months, with a non-parole period of two years.

69 Pursuant to s 151 of the Firearms Act 1996, I have made the forfeiture order sought by the Crown and not opposed on your behalf.

70 In addition, pursuant to s 78(1) of the Confiscation Act 1997, I have made the disposal order sought by the Crown and not opposed on your behalf.

[1] Prison Medical File, Rodney Charles Madex, CRN 80414, Justice Health, Department of Justice and Community Safety, 1 ('Prison Medical File').

[2] Character reference from Tammy Madex; Character reference from Jason Madex dated 23 March 2020; Character reference from Robert Perkins dated 12 March 2020; Character reference from Donna Hibbert; Character reference from Jeff and Robyn Kelm dated 20 March 2020; Character reference from James Elrick dated 12 March 2020; Character reference from Jennifer Graham.

[6] Report of Matt Hodges, Psychologist, Caraniche Pty Ltd, dated 20 November 2019.

[9] Report of Kellie Couacaud, Assessment and Referral Practitioner, CISP Remand Outreach Program (CROP), dated 13 March 2019, 2, as quoted in Defence Outline of Matters for Plea Hearing [30]; Affidavit of Emma Turnbull in support of an application for bail, sworn 13 June 2019, Exhibit ET-4.

[10] Community Correction Order Brief Pre-Sentence Assessment - Outcome Report of Rodney Charles Madex, Department of Justice and Community Safety, dated 24 March 2020.

[11] [2014] VSCA 342; (2014) 46 VR 308 ('Boulton').