IN THE COUNTY COURT OF VICTORIA
Revised
(Not) Restricted
(Not) Suitable for Publication
AT GEELONG
CRIMINAL JURISDICTION
CR-14-01245
DIRECTOR OF PUBLIC PROSECUTIONS
v
WILLIAM LINDSAY NICHOLLS
---
JUDGE:
WHERE HELD:
HIS HONOUR JUDGE COISH
Geelong
DATE OF HEARING:
DATE OF SENTENCE:
23 March 2015
CASE MAY BE CITED AS:
DPP v Nicholls
MEDIUM NEUTRAL CITATION: [2015] VCC
REASONS FOR SENTENCE
--Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
--APPEARANCES:
Counsel
For the Director of Public
Prosecutions
Mr J.R. Weigl
For the Accused
Mr T. Hannebery
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne - Telephone 9603 9134
166234
Solicitors
HIS HONOUR
1
William Lindsay Nicholls, you have been found guilty by a jury of your peers of
two charges of causing serious injury intentionally.
2
This offence carries the following maximum penalty: 20 years' imprisonment.
You pleaded not guilty and conducted a trial which is your right. Whilst you
are not to be punished in any way for doing so, equally you cannot expect the
benefit that would attach to a plea of guilty or any indication of remorse that
such a plea may have demonstrated.
3
The general circumstances surrounding these offences are as follows:
4
On 18 June 2012 you were at your home at 4 Springfield Court, Corio. At that
time you owed the victim Khalid Alloush money in respect of drugs. You
described your predicament in your diary which was tendered in evidence by
the prosecution in the trial, Exhibit 6. You had reached a point at which you
felt that you had to make a stand against the victim whom you referred to as a
"stand-over drug dealer from Melbourne." You thought that you were the
victim of extortion as your debt had increased. In addition, a colleague,
Tommy, was being held by the victim. The victim contacted you making what
you considered to be silly threats and telling you that he was coming to see
you to make you "empty your bank".
5
After the victim arrived at your property at about 4pm you heard an argument
in your front yard. You left your home carrying a 410 shotgun. It was pointed
at the victim. In your diary you wrote that you did not fire a shot, rather you hit
the victim over the head with the shotgun. The jury rejected this version of
events. The jury were satisfied beyond reasonable doubt that you shot the
victim.
6
The shot was fired at close range to the victim. There was only approximately
1.5 metres from the end of the barrel of the shotgun to the victim. The shot
removed a portion of the victim's calf from his leg. After the victim was shot
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DPP v Nicholls
he was hopping and yelling in pain. Neighbours saw you strike the victim's
upper body and this caused him to fall to the ground. In your diary you wrote
that you got a friend to take your gun and dispose of it.
7
The victim was taken to Geelong Hospital by ambulance. He arrived in the
Emergency Department at 5.17pm. The victim told the staff at the Geelong
Hospital that he had been shot with a shotgun once in the lower leg at
approximately 4pm.
8
There was a large deep wound measuring approximately 20 x 15 centimetres
to the lateral part of the left lower leg. X-rays confirmed large skin and muscle
loss but no sign of bony injury.
The victim was treated at the Geelong
Hospital and at the Alfred Hospital in Melbourne. The victim was operated
upon on 21 June 2012. The wound was debrided, that is cleaned of all dead
tissue, washed and skin grafts were applied.
9
There is no Victim Impact Statement.
There is no up-to-date medical
evidence before me. I sentence you on the basis that there is no permanent
impairment or loss of function of the victim's left leg.
10
On 8 January 2013 you and Trent Schiller attended at Scott Sheppard's home
at 28 Myrtle Grove, North Shore. Whilst there was much evidence in the trial
concerning the circumstances of your attendance at Sheppard's home with
Schiller on this day, I sentence you on the basis that your attendance upon
Sheppard at his home was, in a general sense, connected with money and
drugs.
11
Once inside Sheppard's home, you, Schiller, Sheppard and another man,
Andrew Cowton, moved towards the lounge room. Words were exchanged in
the house and you asked Sheppard if he was cooking. You then pulled a .22
Beretta pistol from your clothing, you pointed it at Sheppard and you shot him
in the right thigh. You were a short distance from Sheppard when you shot
him.
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You and Schiller left Sheppard's home.
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DPP v Nicholls
12
The CCTV footage from the rear exterior of Sheppard's premises showed you
and Schiller leaving Sheppard's home. From this CCTV footage it appears
that you were carrying a gun in your right hand then you placed it in your left
hand before entering the front passenger seat of Schiller's motor vehicle.
Schiller then reversed his motor vehicle out of Sheppard's driveway.
13
Sheppard was taken by ambulance to the Emergency Department of the
Geelong Hospital. Dr Alistair MacKinlay examined Sheppard. He noted a
single wound on the inner thigh with associated bruising.
14
X-rays revealed numerous metallic foreign bodies embedded within the soft
tissue of the outer aspect of the thigh with a large metallic foreign body
underneath the skin. Sheppard was operated upon and the foreign bodies
were removed from his thigh.
15
Dr MacKinlay expressed the opinion that there would be scarring associated
with the skin wound and there may be ongoing pain or function loss with injury
to the quadriceps muscle.
16
There is no Victim Impact Statement from Sheppard nor is there any up-todate medical evidence. I therefore sentence you on the basis that there is no
permanent impairment or loss of body function of the victim's right leg.
17
You were arrested on 26 April 2013.
18
I state to you that I have taken into account the following matters in mitigation
of sentence. I have been told something of your personal circumstances and
these matters are set out in the report of Dr Cunningham dated 24 February
2015.
19
You are 34 years of age having been born on 2 January 1981. You were
raised in Geelong. You were educated to Year 9 level. Upon leaving school
you worked as a groundskeeper and storeman but your passion was
Australian Rules Football.
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20
You left home at 18 years of age when you were drafted by the Hawthorn
Football Club. You played for Hawthorn for approximately three years before
being de-listed. You were redrafted by the Richmond Football Club and you
played for Richmond for approximately two years. You were de-listed after
suffering serious injuries.
21
After the termination of your AFL career in about 2004 you described "feeling
lost" as you had no plan for life after football. You had a number of jobs
including work with National Foods and construction work in Mortlake and
Wonthaggi. You were often separated from your family.
22
You are married, you have been in a relationship with your wife for about 14
years and you married in 2006. You and your wife have three young children
aged 6 or 7 years, 4 and 2 years.
23
You have a long history of illicit drug use. You began using amphetamines
when you were about 24 years of age. This coincided with the end of your
football career. Over time your drug use escalated and you began using
methyl amphetamines. You abused methylamphetamines and as a result you
experienced symptoms Dr Cunningham felt were of a substance induced
psychotic disorder.
24
The letters from family and friends tendered on your behalf describe in graphic
detail the manner in which your life spiralled out of control as your drug use
escalated.
You were unemployed, you were forced to sell your home and
your marriage and relationship with your family were adversely affected.
25
Since your arrest, remand and subsequent release on bail in about May 2013
there has been a marked improvement in your personal circumstances.
Various medical and psychological reports were tendered on your behalf.
26
Dr Aaron Cunningham, psychologist, obtained a detailed history of your
personal circumstances including your use of illicit drugs over many years.
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On the basis of your description of your symptoms whilst abusing methyl
amphetamines, Dr Cunningham concluded you were describing symptoms of
a substance induced psychotic disorder.
27
When assessed on 24 February 2015 Dr Cunningham was of the opinion that
your thought processes appeared based in reality and not undermined by
psychotic illness.
Your symptoms have therefore abated since you have
abstained from drug use.
28
Whilst this report does describe the circumstances which led to your descent
into chronic long term drug use and the effect of your drug use on your mental
state I am required to sentence you on the basis of facts consistent with the
jury verdict. That is, that at the time of each shooting your mental state was
that you intended to cause serious injury, not as stated by Dr Cunningham
that you were in a psychotic state throughout the period of the offences.
29
I do, however, accept Dr Cunningham's opinions that the support of family and
friends is a protective factor which may reduce the risk of re-offending and
improve your prospects of rehabilitation and that you have made significant
progress in rehabilitating whilst on bail.
30
The report of the general practitioner Dr Mossop details your medical history
since about 2006. The report of Tricia Balkin describes your attendances at
counselling sessions in 2012.
31
A large number of references and testimonials were tendered on your behalf
and one character witness, Mark McDowell, gave evidence on your behalf. I
have had regard to all this material.
32
In the letter from your parents, Gwen and Bill Nicholls, they describe the
depths to which you sank whilst addicted to ice. This included losing money,
a home, your self-esteem and nearly losing your family. They describe the
positive steps taken since about May 2013 to rehabilitate yourself. You have
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ceased drug use, obeyed curfew times and bail conditions, assisted at the
Inverleigh Football Club and helped others to give up drugs.
33
Your sister, Kim Nicholls, has been very close to you. She describes the
devastating effect the premature ending of your football career had upon you,
your downward spiral, drug use and your steps to recovery in more recent
times.
34
Your wife, Penny Lee Nicholls is the mother of your three young children. She
describes the events which led to your drug addiction and the impact of drugs
upon you.
35
Since your release on bail you have lived with your parents but you and your
wife have worked to re-establish your family.
She describes a dramatic
improvement in you and in your recent activities.
36
Letters of support were received from Troy Gray, John Mitchell, Dean Muir
and Rick McEwan. Dean Muir and Rick McEwan described the profound
positive effect you have had at the Inverleigh Football Club. You have also
started a social media campaign, "Stand Up and Fight for the Northern
Suburbs."
37
Chance Bateman has provided a detailed reference. He has known you since
1999.
He describes your generosity, drive, professionalism, loyalty and
support in a difficult time. Anthony Biffano states that you have performed
voluntary work for him.
Sharon Ince has provided a letter in which she
describes another example of support you have provided for a person in
difficulty.
38
Mark McDowell gave evidence and provided a letter which was tendered in
evidence. He has known you since you were a young child. He said that
before you became involved in taking illicit drugs he regarded you as an
exemplary figure.
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39
As a young man you were committed to excelling in sport, Australian Rules
Football. He observed that your life appeared to spiral out of control when
you were taking illicit drugs. During that period he said you were "rudderless."
You completely lost your way, your behaviour changed markedly.
40
When McDowell reconnected with you in 2013 after these events he said you
were semi-delusional and a complete mess. He said that you determined to
rid yourself of the scourge of your ice addiction. You realised that you had to
get off the drugs. McDowell stated that over the past 20 months you have
achieved that goal.
41
You had set yourself five goals. These were, firstly, to restore your mental
and physical health by abstaining from illicit drug use and gaining professional
psychological help and returning to regular exercise. Secondly, to be a better
parent to your three young children. Thirdly, to gain meaningful employment.
Fourthly, to resurrect your sporting career and fifthly, to use your life story and
experiences to educate the community, specifically young people, about the
dangers of drug use.
42
McDowell stated that you have worked hard towards achieving each goal.
This has included undertaking voluntary work, losing weight and improving
your physical condition and volunteering to assist in and around the Inverleigh
Football Club. You have mentored young people and acted as an unofficial
co-coach. The football club has achieved outstanding results due, in part, to
your contribution.
43
McDowell said that you had been completely open with other players about
the dangers of ice. You have assisted other ice addicts and you have been
investigating ways of educating young people on the dangers and negative
impact of ice.
44
Whilst the Inverleigh Football Club was initially apprehensive about your
involvement it is to both the club's credit and your credit that they were
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prepared to give you a go and that you have been a positive influence.
45
I accept McDowell's evidence that you have much support both from the
Inverleigh Football Club and from many others in the Northern Suburbs of
Geelong.
46
You were arrested on 23 April 2013 and remanded in custody for 35 days
before being released on bail. I accept that in the period since your arrest you
have addressed your drug addiction and you have taken many positive steps
to rehabilitate yourself. You have reconnected with your family, sport and the
local community.
47
Not only has there been no subsequent offending but your behaviour since
your release from custody has been exemplary. The prosecution not only
accepted that you have taken significant steps in the process of rehabilitation
but also the prosecutor submitted that your improved physical wellbeing had
been observed by the informant.
48
I accept that you have good support from family and friends and this will
continue upon your eventual release from custody.
49
There has been delay in this matter. I have taken this into account and, in
particular, the steps you have taken of your own volition to rehabilitate
yourself.
50
I assess your prospects of rehabilitation as good.
51
There will be separation from family as a result of imprisonment and this will
cause hardship to your family. Whilst it is not submitted any hardship to family
is an exceptional circumstance this will no doubt be difficult for you. I have,
therefore, taken into account that your appreciation of hardship to family will
increase the burden of imprisonment.
52
.PJ:KD
Against these matters in mitigation, however, your actions were very serious
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indeed. These two offences represent serious examples of the offence of
intentionally cause serious injury. There are a number of disturbing features
of each offence. Each involve the use of a firearm, a shotgun in respect of the
Alloush shooting and a Beretta pistol in respect of the Sheppard shooting.
There were elements of pre-planning. You have grabbed the shotgun and left
your home and confronted Alloush in your driveway having, according to your
diary note, determined to take a stand. You have entered Sheppard's home
armed with the Beretta pistol. Each shooting was in a general context of
drugs and money. There was, therefore, the use of a firearm in connection in
one form or another with the drug trade. Shots were fired at close range.
Your intent was to seriously injure. Your moral culpability is high.
53
As I have already stated there are no Victim Impact Statements. Although
serious injury was caused to both Alloush and Sheppard there has been no
permanent impairment or loss of body function. As your counsel observed
this fortuitous result was more by good luck than good management.
54
You have admitted before me two prior matters. On 10 February 2012 at the
Wonthaggi Magistrates' Court, without conviction, a 12 month Community
Correction Order was imposed in respect of the offences of recklessly cause
injury and unlawful assault.
55
On 1 September 2008 at the Geelong Magistrates' Court, with conviction you
were fined $350 together with $39.70 statutory costs in respect of possess a
prohibited weapon without exemption/approval.
The nature of these prior
matters is relevant to my task of sentencing you today. Further, this offending
on 18 June 2012 and 8 January 2013 was within the period you were subject
to a Community Corrections Order.
56
I have had regard to the principles of totality and proportionality. The presentence detention is 62 days inclusive of this date.
57
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As well as the matters to which I have referred I must also take into account
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the need for general and specific deterrence.
58
Specific deterrence is relevant as you have been involved in a prior matter
involving violence. General deterrence is also of considerable importance in a
case such as this.
59
As was said many years ago in a case involving a shooting, the court must
make a very strong statement to the community that this type of violence will
not be tolerated. This type of offending must be discouraged. I am called
upon by the Sentencing Act to manifest the community's denunciation of your
conduct and generally to impose a just punishment.
60
Your counsel submitted that I ought impose a sentence involving a "cocktail",
that is a combination of two years' imprisonment and a Community
Corrections Order.
61
It was submitted on behalf of the prosecution that such a disposition was not
appropriate as this offending was simply too serious. Each counsel referred
at some length to the recent Court of Appeal decision of R v Bolton 2014
VSCA 342. I have had regard to s.5(4C) of the Sentencing Act 1991 which
provides:
"The court must not impose a sentence that involves the
confinement of the offender unless it considers that the purpose or
purposes for which the sentence is imposed cannot be achieved by
community correction order to which one or more of the conditions
referred to in s.48(F), s.48(G), s.48(H), s.48(I) and 48(J) are
attached."
I am satisfied that the sentencing purposes of just punishment, denunciation
and specific and general deterrence cannot be sufficiently served by the
making of a Community Corrections Order, even with onerous conditions and
in combination with a sentence of two years' imprisonment. I am satisfied that
I have no alternative but to impose a significant immediate custodial sentence.
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62
These are serious individual offences involving the shooting of two victims.
There is, in my opinion, no significant difference in terms of the nature of the
offending the subject of Charges 1 and 2 whereby one charge could be
regarded as more serious than the other, therefore I have imposed identical
sentences on each charge.
63
I have ordered a degree of cumulation to take into account the separate
offending. I have, as stated, taken into account the principle of totality.
64
Upon your conviction and sentence to a term of imprisonment on Charge 1
you are to be sentenced as a serious violent offender in respect of Charge 2.
I direct that pursuant to s.6(F) of the Sentencing Act, there be entered in the
records of the court that I have sentenced you in respect of Charge 2 as a
serious violent offender within the meaning of the Act.
65
I must, therefore, regard the protection of the community from you as the
principal purpose for which this sentence is imposed.
66
I must decide, in your case, whether a sentence longer than that which would
be proportionate to the gravity of the offence should be imposed and whether I
should direct that the sentence be served cumulatively on any uncompleted
sentence or the sentence I impose on this day.
67
In the circumstances I do not consider it is appropriate for me to impose a
sentence longer than that which is proportionate to the gravity of the offence
considered in the light of its objective circumstances. I have ordered partial
cumulation.
68
Having regard to all relevant facts and appropriate sentencing principles I
sentence you as follows:
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69
Charge 1, convicted and sentenced to 8 years' imprisonment.
70
Charge 2, convicted and sentenced to 8 years' imprisonment.
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71
I direct that three years of the sentence imposed on Charge 2 be served
cumulatively upon the sentence imposed on Charge 1.
Otherwise, the
sentences be served concurrently. The total effective sentence is 11 years'
imprisonment.
The non-parole period is the minimum term that justice
requires you to serve having regard to all the relevant circumstances that
exist. For that reason, it cannot be fixed automatically. All relevant factors
and sentencing principles are to be taken into account. I have to consider
when you should be eligible for mitigation of confinement and, in turn,
rehabilitation under conditional supervision.
72
In all the circumstances I direct that you serve a minimum term of eight years
before becoming eligible for parole.
73
As prescribed by s.18 sub-s.(4) of the Sentencing Act, I declare that the
period of time you have spent in custody is 62 days inclusive of this day which
is to be reckoned as time already served under the sentence. I direct that
such be noted in the records of the court.
74
I have already dealt with the serious violent offender provisions and I shall
make the forfeiture order and the disposal order sought by the prosecution.
75
Does that cover all the formalities?
76
MR WEIGL: Yes, Your Honour.
77
MR HANNEBERY: Yes, Your Honour.
78
HIS HONOUR: Remove the prisoner.
79
(Prisoner removed)
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