Use offensive weapon (firearm) to commit an indictable offence (intimidation)
fire a firearm in a manner likely to endanger the safety of any other person or property
intimidate with intent to cause the victim to fear physical or mental harm
Source
Original judgment source is linked above.
Catchwords
Use offensive weapon (firearm) to commit an indictable offence (intimidation)fire a firearm in a manner likely to endanger the safety of any other person or propertyintimidate with intent to cause the victim to fear physical or mental harm
Judgment (1 paragraphs)
[1]
Valentino Bartolic-Arnaez, you appear for sentence today in relation to three principal offences.
First, using an offensive weapon with intent to commit an indictable offence. The offensive weapon was a firearm, being a .22 calibre rifle; and the indictable offence was intimidation. This offence (sequence 6) involves a contravention of s33B(1)(a) of the Crimes Act. The maximum penalty for that offence is 12 years imprisonment. According to the amended Crown sentence summary (tendered by consent), there is no standard non-parole period.
Secondly, firing a firearm in a manner likely to endanger the safety of another person or property. This offence (Count 1) involves a contravention of s93G(1)(c) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. Again, according to the amended Crown sentence summary, there is no standard non-parole period.
Thirdly, intimidation with intent to cause the victim fear of physical or mental harm. This offence (sequence 11) involves a contravention of s13(1) of the Crimes (Domestic and Personal Violence) Act. The maximum penalty for that offence is imprisonment for 5 years. Again, according to the amended Crown sentence summary, there is no standard non-parole period.
Insofar as the first principal offence is concerned, you have asked the Court to take into account two matters on a Form 1 which I have certified. The first of those matters is possessing an unauthorised firearm (sequence 9) (being a .22 calibre rifle); the second is possessing an unauthorised firearm (sequence 10) - the dates for those matters respectively being 17 and 1 August 2020.
At the time you committed the three principal offences, you were on parole for the offence of damaging or destroying property. You were also subject to two community correction orders for the offences of common assault and stalk / intimidate which had been imposed by his Honour Judge Haesler SC on 20 April 2020 (see Exhibit E). His Honour has been consulted and agrees to me calling up those two community correction orders.
In addition to the two community correction orders imposed by Judge Haesler, you were also on two community correction orders imposed by the Local Court for the offences of having custody of a knife in a public place and goods in custody (see Exhibit D). You have consented to me calling up those further community correction orders.
By having regard to the nature of the matters in those four community correction orders, and the sentence which will be imposed upon you for the three principal offences I have already referred to, I direct that no further action be taken in relation to any of those community correction orders.
The protracted nature of the sentence hearing was unfortunate. It arose as a result of the following issues (which emerged sequentially in the various listings):
1. a dispute as to an aspect of the Agreed Statement of Facts
2. an erroneously drafted Form 1
3. an omission by the parties to consult in Haesler SC DCJ as to the callup of Community Correction Orders imposed by his Honour; and
1. concerns expressed by the Court as to whether the caravan park was a public place as was asserted - and agreed to by you - in the "predecessor" to Count 1 (i.e. Seq 8 in MFI 1) - which assertion/agreement was ultimately withdrawn (viz Seq 8 was withdrawn and you were arraigned on a Indictment …_7.2 which contained Count 1 - to which you pleaded guilty on 19.5.22).
The facts surrounding the three principal offences and the two matters on the Form 1 are contained in a document entitled "Statement of Agreed Facts" and can be found at Tab 4 of Exhibit A. Those facts can be summarised as follows.
The Gateway Caravan Park is situated on Pleasant Way, Nowra.
As at August 2020, Mr Allan France had been living at the caravan park for approximately two years.
You had also been a resident of that park - although you were not a resident as at that date. However, after you left the park, you used to visit other residents of the park.
One of those residents that you used to visit was Mr Trevor Williams. Mr Williams' caravan was located about 50 meters from Mr France's. You also knew Mr France.
On 14 August 2020, Mr France had, what is described in the Statement of Agreed Facts as, an "altercation" with Mr Williams. Mr France's girlfriend was visiting him. Mr Williams came to Mr France's van to "demand" a cigarette. Mr France refused to give him one because Mr France thought Mr Williams had stolen property from him. Mr France's girlfriend intervened and told Mr Williams to go away - or words to that effect. Mr Williams became angry and hit Mr France's boat and caravan with a metal pole and then walked off.
On 15 August 2020, Mr France had been at the amenities block in the caravan park and was walking back to his van. He passed by Mr Williams' van and an unpleasant verbal exchange took place between the two men.
The next day (16 August 2020) was Mr France's 52nd birthday. He celebrated the occasion by visiting his brother in East Nowra, where he stayed for most of the night.
At 3:30am on 17 August 2020, Mr France returned to the caravan park. "Soon after" his return, Mr France was sitting on the lounge in his van. He saw someone walk past his van. Mr France assumed it was Mr Williams, and Mr France yelled out to whomever that person was: "come on, let's have a go Tricky [Mr Williams' nickname], you're just a dog, you're nothing but a dog".
A few minutes later, you were standing on the doorstep of Mr France's caravan. You said: "He's not a dog". Mr France said: "Yes he is".
You had taken a loaded firearm with you to Mr France's van. You were not authorised to be in possession of a firearm.
After Mr France said "Yes he is", you raised that firearm (which appeared to Mr France to be a shortened single barrel rifle) towards Mr France's face; pointed it at his forehead; and then placed the firearm such that it touched the skin of Mr France's forehead.
It is these facts which constitute sequences 6, 11 and 9.
Mr France then moved his head and you deliberately discharged the firearm into the caravan, your intention being "… to scare, threaten and intimidate…" Mr France.
It is these facts which constitute Count 1.
The discharge of the firearm produced a large deafening sound in Mr France's right ear. There is, however, no victim impact statement or other material as to what, if any, temporary or permanent damage was occasioned to Mr France's hearing. I shall not speculate about that matter adversely to your interests.
Mr France saw that, as a result of the discharge, there was a small hole in the wall of the van near the sink. Later expert forensic examination concluded that that hole was consistent with it being caused by the discharge from a .22 calibre firearm.
After discharging the firearm, you ran off.
Why you involved yourself at all in this dispute between these 2 men - and why you involved yourself by using a firearm in the circumstances I have described - has not been explained.
You were arrested on 18 August 2020.
At some point after your arrest, the police accessed your mobile phone and, amongst other things, located a photograph of you taken on 1 August 2020 in which you were holding a firearm (what type of firearm is not the subject of any agreement or evidence). At that time, you were not authorised to possess a firearm.
It is these facts which constitute sequence 10.
Each of the three principal offences is, for an offence of its kind, approaching a mid-range offence.
The nature of the two matters on the Form 1, however, will not result in any increase in the sentence for sequence 6.
Each of the principal offences is additionally aggravated because, at the time of those offences you were on parole and were subject to four community corrections orders; and because the offences were committed within the home of the victim. "Additionally aggravated" indicates that those considerations were not taken into account in assessing the objective seriousness of any of the principal offences.
You did not give sworn oral evidence in the sentence proceedings.
Rather, your additional subjective circumstances were provided through the report of Mr Bradley Jones (a psychologist) dated 22 October 2021; and a letter of "remorse" signed by you; and a letter from your mother. Each of these documents was tendered without objection.
At the time of the offending, you were just 22 years of age.
You were the only child born to your parents - although you have five half biological siblings - with whom you have had little, if any, relationship.
Your parents divorced when you were an infant and you had little contact with your father until your teenage years.
Although in your early years you held some resentment towards your mother because she tried to prevent you from contacting your father, her efforts were well motivated - he was, after all, a member of an Outlaw Motorcycle Gang.
On the whole, however, you have had a good relationship with your mother who brought you up in a loving and supportive family. Your connection with her has only strengthened during this current period of imprisonment.
Your school years were problematic and, at 16, you were placed in what Mr Jones describes as a "behavioural school". Your later teenage years were "…spent engaging in antisocial and delinquent behaviours with like-minded teenagers".
You left school at the end of Year 10 and have had no meaningful employment since that time.
Unsurprisingly, you have had problems with illegal drugs and alcohol abuse since your mid-teens. And you were under the influence of both alcohol and illegal drugs at the time you committed these offences. Mr Jones has concluded that you have severe alcohol and cocaine use disorders, both of which are, in the controlled environment of incarceration, in remission.
Although you had some mental health issues in your mid-teens, you currently do not have such issues.
Mr Jones has found that your cognitive function was in the average range and that you had good insight and judgement. In this context, you expressed remorse and guilt for your offending to Mr Jones - and you said as much in the letter you provided to the Court. I am satisfied, on the balance of probabilities, that you are genuinely remorseful for your offending - and notwithstanding the latter half of paragraph 4 of Mr Jones' report which is not entirely consistent with the Statement of Agreed Facts.
You have had one significant permanent relationship, during which a son (Eliah) was born. Eliah is now 3 years old. Your relationship with Eliah's mother is over, and it ended badly such that "DOCS" became involved. In the process that followed, you underwent a DNA test - from which you discovered that Eliah was not (as you had until then believed) your biological son. You were present at Eliah's birth; you raised him when his mother was absent from the house; your mother currently has custody of him; and you continue to refert to and consider Eliah to be your son. This says a lot about you, Mr Bartolic-Arnaez.
You have prior convictions and are, therefore, not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. You are entitled, however, to the leniency which, in appropriate circumstances, can be extended to a young offender.
Although you initially told lies to the police about the events of the morning of 17 August 2020, you did enter an early plea of guilty. You will receive an effective discount of 25 per cent for the utilitarian value of that plea (which is consistent with your genuine remorse). As I shall be imposing an aggregate sentence, the discount will be applied to the indicative sentences underpinning that aggregate sentence.
Although the three principal offences could have been dealt with summarily, the seriousness of the offending made it appropriate for the matters to be dealt with in this Court.
No sentence other than a sentence of full-time imprisonment is appropriate for any of the principal offences, and that was conceded by both of your experienced counsel.
The start date of the sentence will be backdated to the date of your arrest to be served concurrently with the short period of time which was the balance of parole from the earlier sentence.
I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period of that aggregate sentence: first, because of your youth; and secondly, because your prospects for rehabilitation would be enhanced by a longer period on parole.
In fixing the sentence, both general and specific deterrence are fully engaged - as is the need to encourage your rehabilitation.
The facts underpinning the three principal offences call for significant concurrency in determining the aggregate sentence.
The indicative sentences underpinning the aggregate sentence are as follows.
In relation to sequence 6 (and taking into account the two matters on the Form 1), except for your plea of guilty, the indicative sentence would have been imprisonment for 4 years 6 months. After the discount of 25 per cent, the indicative sentence is imprisonment for 3 years 4 months.
In relation to Count 1, except for your plea of guilty, the indicative sentence would have been imprisonment of 4 years. After the discount of 25 per cent, the indicative sentence is imprisonment for 3 years.
In relation to sequence 11, except for your plea of guilty, the indicative sentence would have been imprisonment of 2 years 6 months. After the discount of 25 per cent, the indicative sentence is imprisonment for 1 year 10 months.
Valentino Bartolic-Arnaez, for the three principal offences, I sentence you to an aggregate term of imprisonment of 4 years 3 months.
I fix a non-parole period of 2 years 3 months to date from 18 August 2020 and which will expire on 17 November 2022.
I fix a balance of 2 years to date from 18 November 2022 and which will expire on 17 November 2024.
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Decision last updated: 22 July 2022