R v Falk-Meyn [2013] NSWDC 35

District Court New South Wales

Medium Neutral Citation: R v Falk-Meyn [2013] NSWDC 35 Hearing dates: 9 November 2012; 7 February 2013 Decision date: 07 February 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of an overall non-parole period of 9 years and an overall head sentence of 13 years Catchwords: CRIMINAL LAW - Sentence - Form 1 - Shooting with intent to murder - Possess prohibited weapon Category: Sentence Parties: The Crown Luis Leslie Falk-Meyn Representation: Mr P Barnett - Crown Mr M Weightman - The offender Director of Public Prosecutions Legal Aid Commission - The offender File Number(s): 2011/376315

SENTENCE 1HIS HONOUR: Many offences of attempted murder result in no actual physical harm, guns do not go off or bullets miss, but this is not such a case. The offender shot Maxwell Barrett with the intention of killing him. He did not succeed in killing Mr Barrett but Mr Barrett's physical injuries are such that he has been significantly harmed by what Mr Falk did to him. All offences of attempted murder involve an offender wanting to kill another person but this is more serious than those where no injury is caused simply because a high level of injury has resulted. 2Let me explain how the offences that I am dealing with came about. The offender is twenty-four. He has a sister who is two years younger than him. A man by the name of Maxwell Barrett was for some years in a relationship with Mr Falk's grandmother. When Mr Falk was about twelve he told members of his family that his sister had complained to him that Mr Barrett had spoken to her in a sexually explicit manner and dealt with her sexually. Not surprisingly, there was a bit of a discussion involving the various members of the family. As a result the relationship between Mr Barrett and the offender's grandmother ceased, Mr Barrett being told of the allegations that had been made against him. 3It is not for me to make a finding about Mr Barrett's conduct. It is not for me to decide whether he did deal sexually with the offender's sister and speak to her in a sexually explicit manner. All I need to find, and I do, is that it appears that the offender did believe that Mr Barrett had done those things. 4After the relationship ceased, Mr Barrett was subject to various forms of abuse by members of Mr Falk's family, and clearly over the years Mr Falk has harboured animosity towards Mr Barrett. He has been a bit of a focus of the offender's anger from time to time over the years. 5The offender was released from custody having served a sentence for armed robbery on 25 July 2011. I will note now that he was released without supervision because he was released at the expiry of his total term. Not too long after his release from custody he said something on Facebook to which his sister took exception. She and Mr Falk exchanged disharmonious messages resulting in the offender's sister comparing the way he was treating her with the way that Mr Barrett had treated her some years before. She said, amongst other things, "You're no better than Max because he treated me the way you speak about women, that's why I'm so upset by what you wrote". 6It appears that this led to the offender's resentment heating up. There were threats made to him on Facebook perhaps related to what I just referred to and the offender obtained a shotgun and ammunition, he says in order to defend himself because of the threats that were being made against him, but he also determined that he would use that shotgun to kill Mr Barrett. 7In the period leading up to his attempt to do so, he made some enquiries about where Mr Barrett was living. At 10.30pm on 23 November 2011, the offender sent a text message to his friend, Matthew Mason, saying he was going to kill Mr Barrett. He sent a message to his sister about an hour later expressing his love for her. She asked him not to do anything silly and the offender said that he would not. He then went to Mr Barrett's home. He had the shotgun and three rounds of ammunition. The ammunition took different forms, one was a solid slug and the other contained smaller pieces of shot. The offender deliberately chose ammunition of the latter type to put in the chamber of the shotgun because he thought it was more likely to kill Mr Barrett. 8He waited outside and made efforts to draw Mr Barrett out of his home. He did this by throwing a Besser block through the window of Mr Barrett's motor vehicle. He was hoping that Mr Barrett would open the door to his home so he could be shot. Mr Barrett didn't hear what happened but his neighbour did. She came out, asked what was going on, became concerned of course and went in to ring triple-0. Because the offender had not succeeded in getting Mr Barrett to come outside by breaking the window of his car, he took more direct action. He started throwing bricks at the windows of the house. He had to throw four bricks before Mr Barrett, alerted by the noise of breaking glass, came to his front door. He opened his wooden door and pushed the screen door open, stepping onto his front verandah. As he stepped from the doorway the offender raised the shotgun and discharged it. Photographs were tendered showing that the shot had passed through the screen door. Mr Barrett was struck. 9The offender jettisoned the fired cartridge and reloaded the gun and then made his way to Mr Mason's home. He then hid under the house. He rang his sister and said, "I just shot Max, I just shot and killed him". When asked, "Why?" He said, "Because I hate him". The offender contacted others indicating that he had shot and killed Mr Barrett. Eventually the offender was discovered hiding under the house and after some time, during which the offender threatened self harm, he was persuaded to come out where he was arrested. 10The offender eventually spoke to police in an electronically recorded interview and told police what he had done. He admitted he had gone to Mr Barrett's home with the intention of killing him and told police he was quite surprised that Mr Barrett had not died. He explained that his motivation was his hatred of Mr Barrett. 11As might be imagined when you get shot with a shotgun at close range significant damage is caused. Mr Barrett was taken to hospital and operated on. Unfortunately what affects him most these days is an unhappy consequence of being shot and the surgical procedures which followed. He suffered a stroke which has severely impaired his ability to move, communicate, and think, such that he has gone from living independently to living in a high level, residential aged care facility requiring maximal assistance. The impact upon Mr Barrett has been enormous. 12The offender was charged with two offences, one of shooting with intent to murder and another one of possessing a prohibited weapon, namely the shortened shotgun. When I sentence him for the second of those two matters he ask that I take into account two matters on a Form 1, one offence of possessing ammunition without a permit and the other one of not keeping the firearm safely. Whilst there is a considerable degree of overlap between the two offences on the indictment, possessing a prohibited weapon and using it to shoot someone with intent to kill them, there is still a need for a level of accumulation given the separate aspects of criminality to which the offences relate. 13Mr Falk's background is troubling. His mother gave evidence on the last occasion setting out the difficulties that the offender's behaviour had caused from a very young age. She explained the history of his schooling and what she and her family had had to put up with over the years. She appears to have made superhuman efforts to assist the offender as he was growing up but these have all, as these offence demonstrate, been largely in vain. 14The offender's behaviour has been disturbing for many years. There is nothing really in his background which would explain why that would be so. Although his parents separated when he was relatively young, there is no suggestion that that had any significant impact on Mr Falk's behaviour. Instead it appears to be something within Mr Falk that has caused him to act in inappropriate, violent and aggressive ways for almost all of his life. 15Two reports have been tendered today to assist me in understanding what it is which has troubled the offender over the years and to assist me in deciding the offender's moral culpability amongst other matters. Dr Adams who has seen Mr Falk on a number of occasions has reviewed him extensively and looked at a number of other documents which set out investigations into the offender's psychiatric state by other experts. He says that the offender's "clinical presentation can best be understood in terms of his underlying borderline (emotionally unstable and impulsive) and antisocial personality structure in keeping with a personality disorder that developed in the context of his disrupted early childhood." 16Some things have not helped. The offender has been using drugs in the past which not surprisingly has deleteriously impacted upon his mental state over the years. The offender has had significant mood changes and associated features of depression. He speaks about symptoms consistent with psychosis although there is no evidence to suggest, according to Dr Adams, that he suffers from an underlying psychotic disorder such as schizophrenia. What is clear is that Mr Falk's unhappy mental state is very long standing and there is no guarantee that it will improve any time soon. That is not to say of course that there has not been some improvement. I mentioned that Dr Adams has seen Mr Falk on a number of occasions. When one contrasts how he appeared to Dr Adams as he described in a report dated 4 April 2012, to his description in Dr Adams' later report dated 31 January 2013, there is a glimmer of hope. Mr Falk is, in custody, complying with his medication regime and appears to have been assisted by conversations with older and perhaps wiser inmates as to what life inside is really like. Dr Adams says, and the Crown does not challenge, that these offences were committed at a time when the offender was not complying with his psychiatric medication and was using increasing levels of illicit substances. On top of that, the threats that he was getting over Facebook, added to his increasing levels of distress and fear for his own safety. Dr Adams says: "In my opinion it is reasonable to conclude that his decision making capacity and consequential thinking would have been impaired as a result." 17This is an important matter in assessing the moral culpability of the offender when, after some planning, he went that night to kill Mr Barrett. Had the offender's mental state not been as Dr Adams describes it, his moral culpability would have been even higher. 18Of course, as Mr Weightman who appears for the offender accepts, it does not automatically flow that mere presence of a mental illness should necessarily result in a shorter sentence. There are considerations which work both ways. Although for example, the offender's moral culpability might be lower than what otherwise be the case and the offender's time in custody might be harder than were he not suffering from a mental illness, the very nature of his mental illness suggests that there is an increased risk of future offending. I spoke before about some changes that had come about in the offender in more recent times as he has complied with medication, abstained from illicit substance use and been reviewed by mental health clinicians whilst in custody, but it has to be said that the offender's prognosis is still very much guarded. 19The offender pleaded guilty at the earliest opportunity to these matters and so the sentence I impose upon him will be twenty-five per cent less than it would otherwise have been. The attempted murder charge, is of course a very serious one. It carries a maximum penalty of twenty-five years with a standard non-parole period of ten years. The firearm's offence carries a maximum penalty of fourteen years with a standard non-parole period of three years. I have taken the maximum penalties and the standard non-parole periods into account in determining the sentences to impose upon Mr Falk. My reasons for not imposing the standard non-parole period in either case are to be found in these remarks on sentence. 20I noted before that the offender was released from custody shortly before he committed these offences without being supervised by the parole authorities. I, of course, mean no criticism of them, Mr Falk's behaviour was such that the authorities had no other choice but that does not mean though that I should not make a finding of special circumstances in Mr Falk's favour. His failure to take advantage of opportunities offered to him whilst in custody on the last occasion does not necessarily mean that he will not take advantage of them on the next occasion. It is clearly the case that substantial efforts need to be made in Mr Falk's case if he is to be assisted to avoid future criminal behaviour. As events have shown he is capable of causing great harm and if upon his release from custody (and released from custody he must be at some stage), he commits a further offence involving more harm, then those individuals and the community in general, will suffer greatly. 21Depending on how the offender goes over the years that he must necessarily serve in custody, it may be that the parole authorities consider it appropriate to release him at the end of his non-parole period, if they do then an extended period of supervision on parole will assist Mr Falk to avoid further offending and that will in turn have beneficial effects for the community. However, given the length of the sentence which I must necessarily impose and given the length of the non-parole period which results from an application of the statutory ratio, there will necessarily be a fairly modest reduction in the ratio of non-parole period to head sentence. And on top of everything I have said it must be remembered that one of the fundamental rules in sentencing is that a non-parole period imposed upon an offender must bear a reasonable relationship with the objective gravity of what the offender did. As I have tried to make clear, in the offender's case, the objective gravity of his conduct was significant indeed. 22Taking into account the Form 1 matters, for count 2 on the indictment the offender is sentenced to imprisonment. I set a non-parole period of three years and a head sentence of four years to date from 24 November 2011. On count 1 on the indictment, the offender is sentenced to imprisonment. I set a non-parole period of eight years and a head sentence of twelve years to date from 24 November 2012. There will thus be an overall sentence consisting of a non-parole period of nine years, the period of eligibility for parole of four years, making a total sentence of thirteen years. 23The earliest date on which the offender can be released is 23 November 2020.