10 March, 2010

"An Act of Sheer Stupidity"

Vin was already married with children when his parents decided to separate in 1996, but to help them out, he decided to let two of his younger brothers move in with him and his family. He promised his mother he would do his best to be a father to them, particularly the youngest Dan, who was in Year 12 at the time. Dan had been doing pretty well at school but since the break up of his parents he had started to wag school, smoke pot, and indulge in "other undesirable behaviour".

Vin's mother contacted him to say she'd just noticed some gold was missing from her safe. A couple of months later she also noticed some jewellery was missing. She told Vin about it, as only she, Dan, and another brother knew the combination to the safe. Eventually, one night in July at around midnight Vin rang his mother to say he was bringing Dan over so that they could all discuss these missing items. He had been drinking that evening, and had become increasingly angry about the whole situation.

Once they were all together, Vin interrogated his brothers as to whether they had robbed their mother. Both brothers denied any involvement, but given Dan's recent drug use, Vin was sceptical about his answers. After about 15-20 minutes, Vin went back out to his car where he had a Luger pistol. He had a licence for the Luger as he was a member of a shooting club, and he had it in the car because he was intending to take part in a practice shoot. He also grabbed a loaded magazine from the car.

In the argument that followed Vin's return to the house, Dan was shot. The bullet struck Dan on the upper right side of his head and passed through his brain, injuring him fatally. Vin rushed over to Dan and tried to revive him, but it was no use. Vin was charged with his brother's murder.

In his recorded interview, Vin told police "So I just said that if he stole money from Mum then I wouldn't let him off scot free, I will kill him. But that was only what I said to scare him and when I, I shot, I, somehow he jumped sideways and accidentally he was shot... I intended just to scare him like this and accidentally I shot him, so I put the gun down here like this and then I called another younger brother of mine to call the police. So I was just trying to scare him by pointing the gun at him, but somehow it went off. It went off and I hit him... When I shot at him I didn't aim at him, I was shooting on one side of where he was but somehow it hit him."

Vin told police earlier that he wanted to fire a shot away from Dan and had intended to shoot just to the side of him. He said he intended to do that, because Dan had taken no notice of his warnings to behave properly, and he wanted to appear "fair dinkum about what I intended to scare him".

At his trial, Vin told the court "I threatened him but he kept saying he didn't do it and at that stage I thought that there was no bullet in the gun... Never in my mind had I the thought of pulling the trigger but I do not know why the gun was fired." He said that he hadn't shot the gun much and wasn't all that familiar with its workings, and that although he loaded the magazine into the gun that night, he had never cocked it. He said he had used the gun on one occasion, firing about 20-30 rounds. He told police that the bullet automatically became loaded into the gun when the magazine was put it.

He was not cross-examined on this, however inconsistencies in earlier statements he had made to police, and also on a bail application, were shown too him. In the bail application he had lied to the court about where he was currently living, and the fact that he had separated from his wife. He attempted to explain this by stating that he had not wanted to mention his family problems to the court. He also said he was referring to different occasions, so that, although he thought he might shoot the gun, he hadn't actually meant to shoot it at the time it fired.

Vin was originally put on trial for murder, however during the proceedings an adjournment was granted so that further ballistic testing could be carried out on the Luger. This testing showed that it was possible to remove the magazine and replace it without affecting the bullet that was currently in the chamber. It was possible in those circumstances for the weapon to remain cocked, and therefore discharge. Basically, it was possible that a user might take out the magazine, see that it was empty, presume the gun was also empty and not realise there was a cartridge in the chamber. Anyone then pulling the trigger would cause the pistol to fire, even if they have not actually cocked it immediately beforehand.

The Crown then offered a charge of manslaughter, which Vin pleaded guilty to immediately, on the basis that he had committed an 'unlawful and dangerous act'.

The Judge found that Vin's earlier lies to the bail court about his marital status and living arrangements were a serious dent in his credibility. As a result, his Honour chose to reject the account of the shooting that Vin gave at his trial, and instead preferred the version he had given to police at the time. The Judge also rejected the idea that Vin was ignorant of how the pistol worked, as he had stated as trial. His Honour found that it was established beyond reasonable doubt that Vin took out the Luger from the car, loaded the magazine into it, pointed the gun just to the side of Dan and fired one shot, which unexpectedly hit him, killing him. Vin intended to shoot, but not to harm.

However, the Judge also took into account that Vin was a 36 year old man with five children, and had arrived in Australia as one of a group of boat people with two of his brothers. He then worked extremely hard to bring the rest of his family out to Australia to set up and operate a sewing company. He had a relatively minor criminal record of traffic and drink-driving offences, and had never been to jail before. He was clearly remorseful for his actions. The tragedy had arisen out of his attempt to take over his father's role when Dan seemed in need of some supervision, and that he was also trying to look after his mother's interests, although in an entirely inappropriate manner, as it turned out. Vin was attempting to assume a family role that was beyond him, and it seemed there was a minor degree of provocation on Dan's part, although this was in no way an excuse for his actions.

Nonetheless, the offence was still very serious, and his Honour commented that there was no room whatsoever for guns in ordinary social relations in today's society. He concluded that Vin's behaviour was "an act of sheer stupidity".

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