R v Warwick

Supreme Court of Victoria|2012-09-13|Before: HOLLINGWORTH J

CRIMINAL LAW - Sentence - Intentionally causing serious injury - Conduct endangering life - Offender went to scene, armed with loaded handgun - Offender fired shots at or in direction of unarmed persons - Offender on parole at time of offending - Serious examples of both offences - Numerous prior convictions - No remorse - Sentenced to 5 years and 9 months' imprisonment for intentionally causing serious injury - Sentenced to 2 years' imprisonment for conduct endangering life, with 3 months' cumulation - Total effective sentence of 6 years' imprisonment - Non-parole period of 4 years.

2 Both offences took place around 9 pm on 31 May 2011, in the Nicholson Street mall in Footscray.

3 You had gone to the mall that evening, shortly after receiving a telephone call from your niece, Brooke Patterson, to whom you were like a big brother. She sounded distressed, and told you she had been bashed and robbed in the mall by some African men.

4 When you arrived at the end of the mall, a few minutes later, it was clear that Ms Paterson was in no danger, although she was still distressed. At that stage, it would have been easy just to take her away from the scene, in the car in which you were travelling. Instead, you went into the mall with Ms Paterson, armed with a loaded revolver which you had brought with you from the car.

5 You found a group of people, which included some African men, sitting on a bench seat near the Commonwealth Bank, drinking alcohol. The group included Arop Deng, Samual Dichak, Natasha Leone, Zac Long, and two men known only as Sultan and Steve. You went up to them, aggressively demanding to know which one of them it was who had assaulted or robbed Ms Patterson. You were pointing the loaded gun at each of them, as you did so. Ms Patterson told you it was none of the people sitting on the bench.

6 You and Ms Patterson walked away from the group, and went looking elsewhere for the men who had assaulted her.

7 As you were walking away, Mr Deng yelled out something like "What the fuck's with the gun?" or "What's with the fake gun?" He was yelling angrily, slurring his words and speaking with a heavy accent. He was angry with you for having pointed the gun at them.

8 When Mr Deng yelled out, your immediate response was to turn around and fire three shots in quick succession.

9 The first shot passed through the front, and out the back, of Mr Deng's upper left sleeve, narrowly missing his arm. It then hit the seat where Mr Deng and others in his group had been sitting. This shot was the subject of the charge of conduct endangering life.

10 The second shot hit Mr Deng in the upper left thigh, severing his femoral artery and causing him to drop to the ground. After passing through Mr Deng's leg, it hit the same seat, a short distance away. This shot was the subject of the charge of intentionally causing serious injury.

11 You then fired the third shot, which did not hit anybody. You have not been charged with any offence in relation to the third shot, and I mention it as part of the narrative only. I have not treated it as aggravating either of the first two shots.

12 I accept that your actions that evening were not premeditated, and that events unfolded very quickly. Ms Patterson called you at 8:49 pm, and you were arriving at the end of the mall by 9:00 pm. By about 9:05 pm, Mr Deng had been shot and Mr Dichak was flagging down a passing police vehicle. An ambulance was despatched at 9:09 pm. The entire confrontation between you and the people in the mall took no more than a few minutes.

13 I am not satisfied beyond reasonable doubt that, when you took the gun into the mall, you had already formed an intention to shoot anybody with it. But, I am satisfied that you took it with you, intending to use the gun to confront and intimidate the men who you believed had assaulted and robbed your niece.

14 Whilst there were some differences in the evidence as to exactly who was sitting or standing where at the time of the first shot, given the way the prosecution case was run, in finding you guilty of conduct endangering life the jury must have been satisfied that you fired the first shot in the direction of Mr Deng and his group, recklessly and so as to endanger life. I am satisfied to the requisite degree that some members of the group jumped up or started to move away only after you fired the first shot.

15 Given the way the prosecution case was run, in finding you guilty of intentionally causing serious injury (rather than the charge of attempted murder), the jury must have been satisfied that you did intend to shoot Mr Deng with the second shot, but not that you intended to hit him anywhere higher than his legs. The jury must have rejected your assertion that you were only firing some sort of warning shots, not intending to hit anybody.

16 The shot which hit Mr Deng's leg severed his femoral artery, causing such severe blood loss that he went into cardiac arrest in the ambulance. According to the surgeon who operated on Mr Deng, even with skilled surgical intervention, such an injury is often fatal. Fortunately, after major surgery and hospitalisation, Mr Deng has made a full recovery from the shooting, although he still has a large scar on his thigh. Nevertheless, you inflicted a life-threatening injury, using a lethal weapon.

17 In committing these offences, you deliberately fired a loaded revolver, more than once, at or in the direction of somebody who posed no threat to your personal safety. Even though Mr Deng had stood up and started moving towards you, he was about 20 metres away from you when you fired. He was clearly heavily intoxicated. He was carrying a silver wine bladder in one of his hands. Even if you did - as you asserted - think that the wine bladder was a knife, Mr Deng was too far away to pose any real threat to you. The jury quite rightly rejected your claim that you were acting to defend yourself or Ms Patterson.

18 In all the circumstances, I regard both of these offences as serious examples of the relevant offence.

19 A victim impact statement has been provided by Samual Dichak, one of the men in Mr Deng's group. Your actions have caused Mr Dichak to have concerns about his physical safety in the area of the shooting, where many of his friends live.

21 You were born in March 1981, and are now 31 years old.

22 You have no history of psychiatric or psychological illness or treatment.

23 You are one of six children born to your mother. One of your older brothers died before you were born, and another committed suicide in 2005. Your younger brother, to whom you were very close, died some three or four years ago.

24 You are very close to your mother, who is now 66 and suffers from various physical and psychological ailments. She lives in Melbourne.

25 You have not had good male role models in your family. Your father has spent a significant part of his life in prison. He is the younger brother of Joseph Marijancevic, who has a serious criminal history of his own. Your father is being treated for cancer in Queensland, where he now lives.

26 You left school before the end of year 12, and went to work as a steam cleaner, and then at a blacksmith's. Thereafter, it seems that you spent most of your 20s in criminal activity and unemployment.

27 You have a long history of criminal offending, involving convictions for about 40 separate offences, between February 1999 and June 2010. The majority of your convictions are for property offences, such as burglary, theft and possessing the proceeds of crime. In your early 20s, you also had a few convictions for possessing heroin, and possessing and cultivating cannabis.

28 In January and March 2001, you were convicted of possessing a handgun without a licence, and two charges of possessing ammunition without a licence. In both cases, it seems that the items in question belonged to others, but were in your car or the house where you were living.

29 You have had several terms of imprisonment imposed on you, since you were first incarcerated in 2004. You have also been dealt with for failing to comply with three community-based orders, which were imposed on you instead of imprisonment. It seems that, despite numerous opportunities to rehabilitate, you have continued to show little regard for the law.

30 In December 2009, you were sentenced to a total effective sentence of 3 years' imprisonment, with a non-parole period of 1 year and 2 months, for various theft and burglary charges. Having regard to the period of pre-sentence detention for those offences, you were released on parole on 9 August 2010.

31 It is an aggravating factor that you committed the current offences whilst on parole.

32 During the almost 10 month period between being released on parole and the current offending, you worked for about four months as a courier. It is not suggested that you committed any further offences whilst on parole, until the current offences in May 2011. Your counsel suggested that these facts demonstrated that you had started to change your ways, and have good prospects of rehabilitation. But, I note that there had been similar or longer periods in the past when you had not offended, before reverting back to criminal activities. There is no evidence that you have, in fact, decided to change the course on which you have been travelling for most of your adult life. Even though you are still relatively young, you have been given numerous opportunities for rehabilitation in the past. Given your historical disregard for the law, and your lack of remorse for these offences, I am not optimistic about your prospects for rehabilitation.

33 I do note that none of your prior convictions were for offences of violence. Nevertheless, your preparedness to take a loaded gun into a public place, for the purpose of confronting or intimidating others, and to suddenly fire three shots in the direction of others for no good reason, is concerning. Notwithstanding your lack of a violent history, there is clearly some need for specific deterrence in this case.

34 There is also a need for general deterrence, denunciation and just punishment.

35 The maximum sentence for intentionally causing serious injury is 20 years' imprisonment. The maximum sentence for conduct endangering life is 10 years' imprisonment.

36 As mentioned earlier, you were on parole for other offences at the time of this offending. Your parole has subsequently been cancelled; your current sentence is due to expire on 25 November 2012.

37 Section 16(3B) of the Sentencing Act 1991 requires that the sentence I impose be served cumulatively on your current sentence, unless otherwise ordered due to the existence of exceptional circumstances. It was not suggested that there are any exceptional circumstances here.

38 Nevertheless, the totality principle[1] requires that I have regard to your current sentence (including conditions of imprisonment) in determining the appropriate sentence for these two offences.

39 As far as conditions of imprisonment are concerned, since September last year you have been kept isolated or separated from other prisoners, typically spending 23 out of 24 hours each day in your own cell. You have also had reduced prison visits during this period. I am told that this situation has come about for your own protection, because you have been accused of threatening another prisoner (an accusation which you deny). There is no evidence before me as to how long you might remain in this situation, but I have had some regard to the conditions of imprisonment in which you have been held, in determining an appropriate sentence.

40 For intentionally causing serious injury, I sentence you to 5 years and 9 months' imprisonment.

41 For conduct endangering life, I sentence you to 2 years' imprisonment. Having regard to the fact that the shots were fired in quick succession, and as part of a single incident, it is appropriate that there be substantial concurrency between the two sentences. I order that 3 months of the sentence imposed for conduct endangering life be accumulated on the sentence for intentionally causing serious injury.

42 That makes a total effective sentence of 6 years' imprisonment.

43 I fix a period of 4 years before you become eligible for parole.

[1] As discussed in cases such as R v Piacentino [2007] VSCA 49; (2007) 15 VR 501 and DPP v Johnson [2011] VSCA 288.

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