R v Showell [2005] VSC 407

1 Ernest William Showell, you have pleaded guilty to intentionally causing serious injury and possessing an unregistered general category handgun. It is now my duty to sentence you for those offences.

2 The relevant events occurred in the early evening of 20 February 2004. At that time, you were living with your wife at 33 Pleasant Street, Newtown. The 27 year old victim, Nikolaus Kenfield, was living at 84 Noble Street, Newtown, in a house owned by his brother, Luke. They are adjacent properties, separated by a laneway.

3 The 20th of February was an extremely hot summer's day. You had been awake since about 4:00am, unable to sleep due to loud music being played at an unidentified neighbour's house. You and your wife entertained friends for lunch at your home, during which time you drank about three light stubbies of beer. After your friends left, you drank six full strength stubbies of beer. This was an unusual level of consumption for you, as you had greatly reduced your alcohol consumption over the past 5 years.

4 Mr Kenfield had been home alone for most of the day, on a rostered day off work. In the late afternoon or early evening, his house mate arrived home from work and went to sleep.

5 At about 7:00pm, you entered the front yard of No 84, where Mr Kenfield was sitting on the verandah steps having a quiet drink. You were holding a handgun that you concealed by a newspaper. You pointed it directly at Mr Kenfield and said "I am going to kill you."

6 Mr Kenfield leapt up and ran across the verandah, before jumping through a handrail into the fernery area in the front garden. By the time he got to his feet again, you had walked over to him and were standing only a metre or two away. You said "You're fucken dead, you are going to die." I have no doubt that Mr Kenfield believed what you said and feared for his life.

7 You pointed the gun at Mr Kenfield and said "Look at you, you are a coward." Mr Kenfield instinctively raised his arm to protect his head. There was some yelling between the two of you while you were still in the front yard, which could be heard by people in neighbouring houses and at the nearby bowling club.

8 You then fired the gun at Mr Kenfield at close range, hitting him in the upper body at least once, probably twice. Mr Kenfield attempted to flee the front yard. At some stage before fleeing, Mr Kenfield rushed at you, causing you to fall to the ground.

9 Mr Kenfield called 000 from his mobile phone asking for police assistance. He told the operator that there was a man with a gun who was going to shoot him.

10 Having heard Mr Kenfield's cries for help and the gun shots, some of the bowlers at the Bareena Bowls Club made their way to the Noble Street gate of the club, where they saw Mr Kenfield in a distressed state, talking on his mobile phone, and you holding the gun and pointing it at him.

11 You fired at Mr Kenfield again, causing him to scream in pain and clutch his chest. The bowlers encouraged him to seek refuge at the club. He ran over the road to the club, still talking on his phone.

12 You then walked casually from the front yard of No 84. You removed the magazine from the gun and replaced it. It appears that a cartridge had misfed, causing the gun to jam, and you were clearing the jam. You then raised the gun and pointed it again at Mr Kenfield, who was standing with members of the bowling club, next to the Noble Street gate. You fired one or more shots at this time.

13 You kept walking towards Mr Kenfield and the bowlers. They told him to walk away from you, down the narrow footpath at the eastern end of the bowling greens. As Mr Kenfield walked away towards the club rooms, you fired at least one more shot.

14 For some reason, most likely due to shock, Mr Kenfield turned and ran towards you, with his arms outstretched, saying words to the effect of "If you are going to shoot me, then shoot me." You then fired two shorts at close range, hitting Mr Kenfield in the upper body and causing him to fall to the ground. As he struggled to his feet, you fired further shots at him. Around this time, Mr Kenfield dropped his phone, interrupting the 000 call.

15 He staggered across the bowling green, away from you and towards the club rooms. He was bleeding profusely and screaming in pain. Fortunately, Mrs Karen Barnett, a registered nurse, was present. She ran onto the green, grabbed Mr Kenfield and assisted him to the club rooms. With some assistance from other bowlers, she administered first aid in the men's locker room until paramedics arrived.

16 Mrs Barnett's actions were very courageous and deserve special mention. She put her own life at serious risk by running onto the green, in circumstances where she could easily have been shot herself. She managed to stop the profuse bleeding from injuries which were clearly life-threatening. Mrs Barnett undoubtedly saved Mr Kenfield's life.

17 After this you casually walked further down the pathway towards the eastern boundary of the bowling greens. There you spoke to an elderly club member and said "I'm 76 and the gun's jammed."

18 You then turned around, walked slowly back up the pathway and left the club via the Noble Street gate. You walked across the road to No 84, entered the front yard and placed the gun on the newspaper that was lying on the verandah.

19 You said to a neighbour who had heard Mr Kenfield's cries for help followed by gunshots, "I just put three rounds into him the rotten mongrel and if my gun hadn't jammed I would have put more in him." The neighbour asked if Mr Kenfield was alright, and you replied that you thought he was dead. You then sat down and said you couldn't care less if the police shot you, and that you would never have to worry about that bloke playing loud music at all hours of the night any more.

20 After this you strolled to the corner of Pleasant and Noble Streets and up to your home in Pleasant Street. You spoke with your wife, before being arrested on the front porch of your home.

21 After you were cautioned by the arresting officer, you were placed in a police vehicle. At that point you said to Constable Flood "The bloody thing jammed. The gun, it's like it's out of the Spanish war." Asked if the gun was yours, you said "Yes, it's bloody useless, have you ever heard a bloody terrorist squeal? He's bloody screaming and the woman from across the road and her kids came out." Constable Flood said "But you didn't have to do what you did today?" to which you replied "Yeah, well how much do I have to take? Let me just say, don't upset an old age pensioner." Constable Whennen then said "I hope for your sake he doesn't die", to which you replied "Well, I don't care, I'm 76, what are they going to do, condemn me?"

22 Following your arrest, you were interviewed by police and then released on bail. Mr Kenfield was taking to the Geelong Hospital for treatment for his injuries.

23 Mr Kenfield had only lived at No 84 for about 5 weeks at the time of these events and had only hosted one function in that time, an afternoon barbeque. It seems that the previous tenants had been very rowdy and for more than a year had regularly played loud music into the early hours of the morning. This had been a cause of considerable distress to you and other neighbours. The police had been unable to stop the noise. You were unaware of the change of occupancy and apparently mistook Mr Kenfield for one of the previous tenants. Tragically, it seems clear that this was a case of mistaken identity. This demonstrates the danger of taking the law into your own hands, a course which this court wholly rejects.

Mental state

24 You have no history of psychiatric problems or violence. You are somebody who has always kept his emotions under tight control; indeed, at least one mental health professional has described you as "over-controlled" when it came to the expression of any emotion, including anger.

25 No doubt because the offences were completely out of character for you, you have been examined and undergone detailed testing and evaluation by a number of mental health experts since February last year. I have before me reports from psychiatrists Professor Paul Mullen, Professor Graham Burrows, Associate Professor Michael Saling and Dr Carol Newlands, and psychologists Ms Stephanie Kempton and Ms Rachel MacKenzie. In addition, at the request of the court, Professor Mullen provided a pre-sentence report and gave oral evidence at the hearing of your plea.

26 With varying degrees of certainty, the experts conclude that at the time of offending you were probably or possibly suffering from mild cognitive impairment and early onset dementia.

27 The general consensus seems to be that a number of stressors combined with the dementia and caused you to lose self-control. Those stressors include: the larger than usual quantity of alcohol which you had drunk that afternoon; broken sleep due to noise; the very hot weather that day; months of excessive noise from the previous tenants at No 84; suppressed anger at their disturbing behaviour; pressure from your wife to do something about the noise; a feeling of powerlessness due to the apparent inability of the police to control the rowdy neighbours; and the fact that your son, Stephen, had been suffering from leukaemia since 2002, from which he ultimately died in late 2004. The alcohol seems to have been of particular significance; as Professor Burrows succinctly put it: "Alcohol plus dementia leads to disinhibited behaviour."

28 Even though the cognitive decline may have been relatively mild in February 2004, I accept the medical evidence that it would have affected your capacity to deal with the various stressors in a rational manner, and would have impaired your ability to employ the normal mechanics of self-control. In other words, it made you more impulsive and less able to understand the implications of your actions.

29 Since the time of the offences, it is clear that your dementia has continued to develop. Professor Mullen has seen you on four occasions between November 2004 and October 2005. Whilst it is not suggested that you are not fit to plead, he reports that over that period there has been a marked change in your presentation and state of mind due to progressive dementia. You have become more vague, your memory for recent events is patchy, and your responses are slower and less precise. You are less able to learn and remember new information. Your grasp of circumstances, in particular those related to the offences, reveals a poor appreciation of the significance of events. Your day to day functioning has gradually deteriorated and you experience increasing problems with complex motor tasks. You can no longer retain information or interest long enough to read a book, formerly one of your great pleasures. Your motivation has decreased and you spend long periods just sitting or dozing in a chair. You have a limited capacity to cope with and find your way around in new situations. Your trips outside the house are restricted and you only walk the dog along a familiar route to avoid becoming disoriented and lost. Your personality has been changing; your attitudes have become coarser and you now behave with uncharacteristic insensitivity and lack of self-control.

30 Professor Mullen gave evidence that, like other sufferers of dementia, you have poor impulse control and are prone to "lashing out" if provoked. However, the disease has progressed to a point where you are less and less motivated, more and more detached from surrounding events, and less able to understand complex and novel courses of conduct. He believes that whilst you could still lash out at somebody in an immediate reaction, if suddenly disturbed or distressed by them, you no longer have the motivation or motor skills to repeat acts of the complexity of those on 20 February 2004. You have lost the ability to carry out anything except rather repetitive and relatively simple activities.

31 Although your condition may not deteriorate any more rapidly than if you were not in custody, it seems clear that prison would be a very disorienting experience to you. The experts say that you would experience great difficulty coping with unfamiliar surroundings and adjusting to a new routine. Your lack of motivation is such that you would probably literally sit silently in your cell unless required to move. As your disease continues to progress, your capacity for self care will deteriorate. Professor Mullen believes that you will rapidly become unmanageable in a prison environment.

32 Professor Mullen also believes that if you were placed into custody, there would not be adequate facilities to cope with your condition, and you would probably have to be relocated to a hospital within months, perhaps six months. Your condition is not suitable for placement in the Thomas Embling Hospital.

33 The type of dementia from which you are suffering usually progresses reasonably rapidly. With the support of your wife and children, Professor Mullen believes that you may be able to live at home for maybe six to twelve months, with ongoing supervision and management which could initially be provided by Forensicare in conjunction with Community Corrections. After that time, the progress of your disease is likely to be such that you will need to move into a facility that caters for people with advanced dementia.

34 Whether your mental state in February 2004 was such as to constitute "mental impairment" within the meaning of s.20(1) of the Crimes (Mental Impairment and Unfitness to Plead) Act 1997 is not a matter that I need to determine. In pleading guilty to these charges, you have accepted legal responsibility for the offences.

35 Nevertheless, serious psychiatric illness not amounting to mental impairment may be relevant to sentencing in the following ways:

(1) It may reduce the moral culpability of the offence, as distinct from the legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances. Denunciation of the type of conduct in which you behaved is less likely to be a sentencing objective.

(2) It may have a bearing on the kind of sentence that is imposed and the conditions in which it is served.

(3) It may reduce or eliminate general deterrence as an appropriate purpose of punishment, whether or not the illness played a part in the commission of the offences.

(4) It may make specific deterrence more difficult to achieve and often not worth pursuing as such.

(5) It may mean that a given sentence will weigh more heavily on you than it would on a person in normal health.

36 You are now 77 years old. At the time of the offences you were 75 years old.

37 You have been married for more than 50 years to your wife, with whom you have had 6 children. You are a grandfather of 13 children and a great grandfather of 2 children.

38 You left school aged 14 and attended a technical school for 3 years. You completed an apprenticeship as a fitter and turner and have had a stable employment history with a variety of employers in different parts of Australia. Your last job was as a metallics supervisor at the Winchester ammunitions factory, where you worked for a little under 20 years, until your retirement at age 62.

39 Apart from your dementia, you have a number of general health problems, including angina and prostate disease.

40 I turn to consider the impact of the offences upon others. Your actions have had terrible consequences for Mr Kenfield and a number of other people.

41 During the attack, Mr Kenfield suffered 8 penetrating gunshot wounds to his upper body, one of which caused his right lung to collapse, and another which shattered his humerus bone. His injuries were life-threatening.

42 The bullets which shot his lung and humerus still remain in his body and cause him pain. He still has trouble breathing and experiences sharp pains in his right lung. Apart from this, he is riddled with scars on his chest, arm and back, not only from the bullets but from subsequent medical procedures.

43 Mr Kenfield has also suffered financially. He lost his job after the shooting, and has not returned to the work force. He has also incurred significant legal and medical expenses.

44 Mr Kenfield has regular nightmares about being shot at and unable to escape. He finds himself easily startled and has a constant tremor in both hands due to the stress. He is not able to sit and relax, has become anxious and lost much of his enjoyment of life. He has sought counselling and medication to deal with post traumatic stress disorder and depression.

45 I have no doubt that the experience of being pursued and repeatedly shot at over a period of time would have been an absolutely terrifying one for anybody in Mr Kenfield's position. Mr Kenfield's attempts to escape from you were very sensible, and certainly not deserving of your hurtful taunt that he was a coward.

46 Quite understandably, there are other people who have also suffered a combination of stress, anxiety, nightmares and depression since the shooting. They include Mr Kenfield's parents, as well as members of the bowling club who witnessed the attack and who assisted Mr Kenfield with his injuries.

47 The offence of intentionally causing serious injury under s.16 of the Crimes Act 1958 is a serious violent offence carrying a maximum sentence of 20 years' imprisonment.

48 I accept that the offences were not pre-meditated. Nevertheless, you pursued and repeatedly shot at your victim with a lethal weapon. You fired a number of shots at him at a busy bowling club, where you could easily have hit other people. You inflicted life-threatening injuries and terrorised your victim, as you pursued him in an apparently calm manner over a period of some time. Your actions were towards the higher end of the scale of gravity and would ordinarily merit a substantial period of imprisonment for this offence.

49 The maximum penalty for possessing an unregistered general category handgun under s.7B(1) of the Firearms Act 1996 is 7 years' imprisonment.

50 The gun used by you was a Colt "Retolaza" .32 calibre automatic pistol, which has never been registered in Victoria. Apparently the gun was a relic more than 70 years old, which you had acquired during your time working at the Winchester factory. You have never held a licence to possess that gun. It is not clear how or when you had obtained the ammunition which you used.

Other sentencing considerations

51 At the time of offending, you were only in the early stages of dementia. I have some doubts as to whether you could be said to have been suffering at that time from "a serious psychiatric illness." Nevertheless, given the dementia and the stressors which I have previously mentioned, your mental state at the time of the offences was such as to reduce the moral culpability of your actions.

52 The fact that an offence is committed under the influence of alcohol is not generally a mitigatory factor. People cannot simply use alcohol as an excuse for committing a crime. However, it seems that you would have been unaware of the likely effect of consumption of a larger than usual amount of alcohol upon your impaired cognitive function. Alcohol was one of many stressors which combined with your dementia to reduce your self-control.

53 I agree with the prosecutor and your counsel that, by reason of your mental state, both general and specific deterrence have little role to play in determining an appropriate sentence in this case.

54 Normally, general deterrence would play a significant part in sentencing a person who, like you, has taken the law into their own hands. However, that important consideration is substantially modified in your case because of your mental condition at the time of the offences.

55 As far as specific deterrence is concerned, whilst you are, like many dementia sufferers, at risk of engaging in sudden impulsive behaviour, I accept that you no longer have the capacity to carry out an offence such as these ones.

56 It is not clear to what extent you have expressed any remorse for what you have done. On the one hand, Dr Newlands, a forensic psychiatrist, notes in her first report that you have shown "appropriate remorse". On the other hand, one of the psychologists, Ms MacKenzie, reports that you told her you felt no remorse for the actual act, but felt deeply sorry for the impact it has had on your own family. One of your daughters gave evidence that you have told her many times that you are sorry and wished you could turn back time; however, your comments in this regard have apparently not been coherent or detailed.

57 You were originally charged with attempted murder and intentionally causing serious injury. On the laying of an amended presentment at the start of the trial, which removed the charge of attempted murder, you pleaded guilty to the two current charges. By pleading guilty you have spared the victims and other witnesses from the distress of a trial, as well as saving the community time and money. You are entitled to some discount on sentence because of your guilty plea.

58 While your age alone cannot be a justification for imposing an inappropriate sentence, it is a relevant sentencing consideration. In particular, it may affect the question whether a custodial sentence is a viable option and whether a suspended sentence should be given.

59 At the time of offending, you had reached the age of 75 without any prior convictions, having lived a decent, law-abiding life, raising a family, maintaining strong friendships and being gainfully employed. You are entitled to some credit for your previously good character.

60 Rehabilitation is not particularly relevant in a case such as this.

Sentence

61 Your counsel has urged me to exercise mercy. He suggests that a 3 year term of imprisonment, wholly suspended, would be the appropriate sentence for the first charge, and a 2 year community based order for the second charge. He has suggested 3 years because the law does not allow me to suspend a sentence which is for a period in excess of 3 years. The Crown agrees that if I am minded to impose a merciful sentence, then the suggested sentences would be appropriate.

62 As I have already said, the objective seriousness of the principal offence is very high. Even making due allowance for all mitigating factors, a sentence of imprisonment in excess of 3 years would ordinarily be appropriate in a case such as this.

63 An element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion. A sentence may be both just and merciful. In this context, mercy must be moved not merely by sympathy, but by considerations supported by the evidence. It would not be sufficient for both counsel to urge the exercise of mercy; rather, a sentencing judge must be reasonably moved to do so only after careful consideration and by the circumstances of the case.

64 In the highly unusual circumstances of this case, I am moved to exercise mercy and impose the suggested sentences. That does not involve an undervaluing of Mr Kenfield or of his injuries or of his truly terrible ordeal. However, your already limited capacity to cope in the prison environment is likely to decrease steadily and rapidly, to a stage where you will require hospitalisation in a matter of months, not years. The prison system is ill-equipped to cope with elderly dementia sufferers like you. The protection of the community does not require that you be sent to prison. Imprisonment would serve little purpose for anybody in a case such as this.

65 Accordingly, in respect of the offence of intentionally causing serious injury, I propose to sentence you to 3 years' imprisonment, to be wholly suspended. Before I do so, I must take the preliminary step of having you confirm that you understand the effect of a suspended sentence and its consequences. If at any time during the next 3 years you commit, in or out of Victoria, any offence which is punishable by imprisonment, then you will also be guilty of a second offence, namely, breaching your suspended sentence. In that case, you will face the possibility of serving out the full 3 years of imprisonment that I am about to impose.

66 In respect of the firearms offence, I sentence you to a community based order for a term of 2 years. In addition to the core conditions, I will require you to undergo such medical, psychological or psychiatric assessment and treatment as may be directed by Community Corrections, and to be under the supervision of a Community Corrections officer.

67 It seems clear on the medical evidence that any amount of alcohol may now be grossly disruptive and should be avoided. Accordingly, I also propose to make it a term of your community based order that you submit to alcohol testing as directed by Community Corrections. Your family and other carers will have to take extra precautions to ensure that alcohol is not available to you, so as to protect others from further impulsive conduct.

68 I will now read out the conditions of the attached community based order to ensure that you understand and agree to comply with them.

To: ERNEST WILLIAM SHOWELL Date of Birth: 31 May 1928

The Supreme Court at GEELONG on 5 October 2005 convicted you of:

The order commences on 21 October 2005 and ends on 20 October 2007.

You must attend at: Geelong Community Corrections Centre

State Government Offices

Level 5, 30A Little Malop Street

Geelong, VIC, 3220

within 2 clear working days after the commencement of this order.

The Geelong Magistrates' Court will supervise this order.

The program conditions that apply in addition to the core conditions listed below are:

- you must be under the supervision of a community corrections officer;

- you must submit to medical, psychological or psychiatric assessment and treatment as directed by the Regional Manager;

- you must submit to testing for alcohol use, as directed by the Regional Manager.

The core conditions that apply to all community-based orders are that YOU MUST:

- not commit, whether in or outside Victoria, during the period of the order another offence punishable on conviction by imprisonment;

- report to a specified community corrections centre within 2 clear working days after the coming into force of the order;

- report to, and receive visits from, a community corrections officer;

- notify an officer at the specified community corrections centre of any change of address or employment within 2 clear working days after the change;

- not leave Victoria except with the permission of an officer at the specified community corrections centre granted either generally or in relation to the particular case;

- obey all lawful instructions and directions of community corrections officers.

I understand the effect and conditions of this order and consent to it being made.

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