DPP v Prichard

1. The offender, Carlos Prichard, is before the court for sentence in relation to the following offences: (a) joint commission damage property, contrary to s 403 of the Criminal Code 2002 (ACT) (CAN 10622/2021); (b) joint commission common assault, contrary to s 26 of the Crimes Act 1900 (ACT) (CAN 4862/2025); (c) unauthorised possession of a prohibited firearm, contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT) (CAN 10625/2021); and (d) possessing ammunition, contrary to s 249(1) of the Firearms Act (CAN 10624/2021).

2. The maximum penalty for the property damage offence is 10 years’ imprisonment, 1,000 penalty units, or both.

3. The maximum penalty for common assault is imprisonment for two years.

4. The maximum penalty for the unauthorised possession of a prohibited firearm is 10 years’ imprisonment.

5. The maximum penalty for the possession of ammunition is 10 penalty units.

Facts

6. For a period of 12 months, commencing around August 2020, the victim was in a relationship with a woman (whom I will refer to as “the woman”) who was a former partner of the offender. During their relationship, the woman often resided with the victim at his unit in Phillip. Both the offender and his brother had known the victim for many years.

7. At some point on 20 August 2021, the victim had an argument with the woman. The victim asked the woman to leave his unit. She left her dog with him. Later that day, she asked if she could come and collect her dog. The victim put her off.

8. The woman and the offender attended the unit later that day. They retrieved the dog. The offender said insulting words to the victim and the victim pushed him out the door and went back into his unit.

9. The offender reported this conduct to police, asking them for assistance in collecting the woman’s possessions and contemplating that he may report an assault to police.

10. Later that day, there was an unpleasant telephone conversation between the offender and the victim, followed by some text messages sent by the victim to the woman’s telephone making provocative statements about the offender, taunting him to return.

11. The messages included a request that the woman return the keys to the unit by putting them in the letterbox.

12. The offender, his brother and an unknown person returned to the unit between 8pm and 9pm.

13. The statement of facts then records the following: At this time, [a neighbour] was inside his unit and heard a noise outside. He opened his door and saw three men, one holding weapons like a ‘tomahawk’ and ‘a bit of metal with a ball on the end of it’ and something that looked like a machete, but he couldn’t be sure. The [victim] opened the screen door about an arm’s length and stuck his head out, at which point [the neighbour] told the [victim] not to open the door. While the screen door was open, the [victim] could see three people in the stairwell, who he identified as the [offender], [the offender’s brother] and a third person he did not recognise. As the [victim] went to close the screen door, one of the [offenders] swung something towards the door which skimmed the [victim’s] hand through the screen door and caused small scratches on his left hand (joint commission common assault). The [victim] managed to shut the wooden door to his unit but felt he couldn’t get it completely closed. He put his full weight up against the door and still felt that it was coming open. He jammed a crowbar underneath the door to stop the [offenders] from getting inside, as he could feel the door was coming open. While he was blocking the door with his body and the crowbar, the [victim] could hear and feel impacts on his front door repeatedly. The [victim] estimated the [offenders] to be hitting his front door for between thirty seconds to a minute, after which they left. [The neighbour] observed the [offenders] ‘smashing the door with their tools,’ and that they hit his door approximately ten or twelve times with the weapons. During this time the [victim] was screaming for someone to call the police (joint commission property damage). (Citations omitted.)

14. The victim contacted police and identified the offender and the offender’s brother. The door and the door handle had been damaged by the actions of the offenders.

15. On 25 October 2021, police executed a search warrant at the offender’s residence in Wakefield Gardens, Ainslie.

16. Police seized a black gel blaster firearm and approximately 54 rounds of ammunition, all found in the garage which was being used as a bedroom area. That gives rise to the charges of possessing a prohibited firearm and possessing ammunition. The gel blaster could function. The offender could not say who the gel blaster or the bullets belonged to but did say that he had put them in the position in which they were located about two weeks previously.

Victim impact

17. The victim has provided a victim impact statement. He states that, as a result of the offending, his complex post-traumatic stress disorder has worsened, he continues to live with two broken doors, and he still owes $1,800 for door repairs.

Objective seriousness

18. So far as the damaged property is concerned, this involved an estimated 10 to 12 impacts to the front door with tools or weapons over a period of 30 seconds to a minute. It occurred while the victim was attempting to block the door and hold it. Damage was caused to the door and the door handle. While this was occurring, the victim was screaming for someone to call the police. The charge is on a joint commission basis. No offender is identified as having a greater or lesser role in causing the damage. The offending was designed to, at least, intimidate the victim. The scope of the offence provision is unlimited in that any amount of property damage may be encompassed within it. The offending is at the low end of the mid range of objective seriousness for this offence.

19. The common assault involved the use of a weapon and occurred while the victim was in his home. The prosecution accepts that the injury to the victim’s hand was transient and trifling. The offence is charged on a joint commission basis and there is no evidence as to which of the offenders swung the weapon or which weapon was involved. The evidence is insufficient to establish intention but is sufficient to establish recklessness. The offending is mid range offending for a common assault.

20. The firearm offence involved: (a) possession rather than use of a prohibited firearm; (b) one rather than two prohibited firearms; and (c) a prohibited firearm at the low end of objective seriousness for firearms within that category.

21. Although the agreed statement of facts is not specific, it appears that the firearm was a prohibited one because of its resemblance to an M16 type firearm rather than because of any operational feature of the firearm. There is no evidence as to any intention in relation to the use of the firearm and it had been in the possession of the offender for approximately two weeks.

22. The offending is at the low end of objective seriousness for this offence.

23. Finally, the possessing ammunition charge related to 54 rounds of .22 calibre ammunition. The offence provision can apply to an unlimited quantity of a wide range of ammunition types. The offending is at the low end of objective seriousness for this offence.

Subjective circumstances

24. The offender is 42 years old. He is one of seven children. He had a happy childhood, although his parents divorced when he was eight years of age. His father died in 2008. He has a supportive relationship with his mother. He has three daughters aged 17, 19 and 20. He lives in Queensland.

25. He completed Year 10 at high school. He worked in the baking industry for several years after leaving school. He has a consistent work history. He is currently employed as a painter on a casual basis with multiple employers.

26. When younger, he played baseball at an elite level.

27. He has a small number of prosocial friends. He does not have a problem with alcohol or illicit drug use. He is generally in good health. He had some mental health treatment some years ago as a result of depression and anxiety associated with the breakdown of his relationship. He does not currently have any mental health issues.

28. The author of the pre-sentence report records that the offender disagreed with the statement of facts and believes the victim instigated the situation. So far as the disagreement with the statement of facts is concerned, this may have arisen from the author of the pre-sentence report considering an additional charge of attempted aggravated burglary. In any event, counsel for the offender made it clear that the offender accepts the accuracy of the agreed statement of facts.

29. The offender identified that an alternative choice that he might have made on the day was to have “watched another movie and ignored the situation”. That would be good advice to anybody tempted to engage in vigilantism. He is assessed by the author of the pre-sentence report as having a low to medium risk of general reoffending. He is assessed as not being suitable for community service work because he lives in Queensland.

30. A number of reference letters attest to the offender’s good character, commitment to his daughters and work ethic.

31. In order to make amends to the victim, the offender offered through his legal representatives and the prosecution to replace and paint the victim’s door himself at his own expense and effort or, alternatively, to consent to a compensation order for the payment of a $1,000 contribution towards the victim’s expenses for the door.

32. Because of the long procedural history of the matter, including the proceedings being listed for trial on three separate occasions, the offender has been on bail for a long time and required to return to Canberra on multiple occasions for the purposes of the proceedings.

Criminal history

33. The offender has a very limited criminal history. Two Queensland charges were dealt with without conviction: an assault occasioning actual bodily harm in 2003 and a charge of possessing dangerous drugs in 2006.

Pleas of guilty

34. The matter has a complex and lengthy procedural history. It was listed for trial and then the trial was vacated as a result of some late disclosure. It was listed for trial on a second occasion and that resulted in pleas of guilty being entered by the offender immediately prior to the trial, but one of those pleas was subsequently successfully withdrawn. The matter was ultimately resolved in the run-up to a third trial.

35. The offender entered a plea of guilty to the charge of unauthorised possession of a prohibited firearm on 19 September 2022, the first day of the first occasion the matter was listed for trial.

36. The offender entered pleas of guilty to the damage property and possessing ammunition charges on 3 April 2023, the first day of the second occasion the matter was listed for trial.

37. The offender entered a plea of guilty to the common assault charge on 8 May 2025, five days before the third occasion the matter was listed for trial.

38. Ultimately, the pleas of guilty came late in all instances. They allowed a trial to be avoided. A reduction of 10 percent on any custodial sentence is appropriate and the fact of the guilty plea will be taken into account in relation to each of the sentences imposed.

Time in custody

39. The offender has spent two days in custody in relation to the offences, from 25 to 26 October 2021. Sentence of co-offender

40. On 17 November 2023, the co-offender, the offender’s brother, was relevantly sentenced as follows: (a) in respect of a charge of damage to property, the co-offender was sentenced to 10 months’ imprisonment; and (b) in respect of a charge of assault occasioning actual bodily harm, the co-offender was sentenced to 12 months’ imprisonment.

41. The aggregate of these two sentences was 18 months’ imprisonment.

42. The agreed facts which formed the basis for the co-offender’s sentence included that the present offender had an axe. However, that is not an agreed fact in the present case and the plea is based upon joint commission. The subjective circumstances of the co-offender were significantly different in that he had a substantial criminal history, including violence and drug-related offences.

Consideration

43. Vigilantism, even in the context of verbal abuse or provocation, must be deterred. Turning up at somebody else’s house with two other offenders, being armed with tools or weapons, and committing assault and property damage must be deterred.

44. Having said that, the offender in the present case has a negligible criminal history and is now 42 years old. His personal circumstances are very different to those of his brother who received very substantial sentences of imprisonment on an agreed statement of facts which was only slightly different to that upon which this offender is to be sentenced. In contrast to his brother, the offender has no relevant criminal history, no drug use or mental health conditions that would increase his risk of further offending, and a history of stable employment and prosocial conduct. It is significant that even though no love is lost between the offender and the victim, the offender recognises that he would have been better to stay at home and has voluntarily made a reasonable offer to compensate the victim for the property damage.

45. The issue that divided the parties was whether or not the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) was crossed in relation to either the property damage or common assault offences. As the offender lives in Queensland, a disposition involving a period of community service is not available. In my view, the circumstances of the property damage offending are such that the s 10 threshold is passed. That is principally because of the need for general deterrence of such conduct, even in circumstances where there is a degree of provocation. However, in relation to the balance of the offending, there are appropriate sentences which do not involve a custodial component.

46. The starting point for the property damage offending is a sentence of two months’ imprisonment, reduced to 52 days on account of the pleas of guilty and the time spent in custody. That sentence will be wholly suspended upon entry into a good behaviour order for a period of two years, with a condition that the offender comply with a reparation order requiring him to pay the sum of $1,000 to the victim of the offending.

47. So far as the common assault is concerned, that can be dealt with by a fine and good behaviour order. The offender will be convicted and fined $1,000 and required to enter a good behaviour order for a period of 12 months.

48. The firearm offence will be the subject of a conviction and a fine of $1,000.

49. The ammunition offence will be the subject of a conviction and a fine of $100.

Orders

50. The orders of the Court are: (1) On charge CAN 10622/2021 (damage property), the offender is convicted and sentenced to imprisonment for 52 days, which sentence is wholly suspended upon entry into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, with the additional condition that he comply with the reparation order imposed in relation to this offence within 12 months. (2) On charge CAN 10622/2021 (damage property), the offender is to make reparation to [the victim] (care of the Director of Public Prosecutions) in the sum of $1,000 to be paid into court within 12 months. (3) On charge CAN 4862/2025 (common assault), the offender is convicted and fined $1,000 and allowed 12 months to pay and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months. (4) On charge CAN 10625/2021 (possess prohibited firearm), the offender is convicted and fined $1,000 and allowed 12 months to pay. (5) On charge CAN 10624/2021 (possess ammunition), the offender is convicted and fined $100 and allowed two months to pay.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: