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[2017] ACTSC 331
Supreme Court of the ACT
2017-11-03
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - act endangering life - discharging a loaded arm - shooting in residential area - scheduled offences - unauthorised possession of prohibited firearm - unauthorised possession of ammunition -late pleas of guilty - use of term "outlaw motorcycle gang" - ACT Rebels - offenders' attempts to leave motorcycle gang - entry into gang to protect daughter in relationship with senior gang member - son involved in offences to support father - possession of firearms for defensive purposes not a mitigating factor - consideration of "comparable cases".
Cramp v R [2008] NSWCCA 40
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
R v Bryant [2014] ACTSC 128
R v Hill (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012)
R v Hughes (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 8 August 2013)
R v JF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 December 2013)
R v Micallef (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ, Allen J and Mahoney JA, 14 September 1993)
R v Okwechime [2015] ACTSC 129
R v Parkinson (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 6 March 2013)
R v Stott [2017] ACTSC 248
R v Thompson [2017] ACTSC 141
R v Tolley [2004] NSWCCA 165
R v Watson [2014] ACTSC 395
Yammine v R [2010] NSWCCA 123
SCC 188 of 2016; SCC 189 of 2016; SCC 190 of 2016
1. Stephen Pattman has pleaded guilty to one offence of act endangering life by intentionally and unlawfully discharging a loaded arm so as to cause another person reasonable apprehension for his safety, arising under s 27(3)(d) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 10 years.
2. In sentencing Mr Pattman, I am also asked to take into account the following offences:
(a) unauthorised possession of a prohibited firearm, contrary to s 42(a)(iii) of the Firearms Act 1996 (ACT) (being a modified double-barrelled 12-gauge shotgun) and carrying a maximum penalty including 10 years imprisonment;
(b) unauthorised possession of ammunition, contrary to s 249 of the Firearms Act and carrying a maximum penalty of a fine of $1,500.
3. Early in these proceedings, another charge of unauthorised possession of ammunition was transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT). However, that charge is not to be proceeded with, and accordingly, being satisfied for the purpose of s 68D(2) of the Supreme Court Act that it is in the interests of justice to deal with that offence in these proceedings, I dismiss that charge.
4. Stephen Pattman's son, Christopher Pattman, has pleaded guilty to one offence of unauthorised possession of a prohibited firearm, also arising under section 42(a)(iii) of the Firearms Act and carrying the maximum penalty including imprisonment for 10 years.
5. From about 2010 to December, 2014, Stephen Pattman and his son and co-offender, Christopher Pattman, were members of an organisation described in the agreed statements of facts as the Rebels Outlaw Motorcycle Gang. I note at this point that although the term "outlaw motorcycle gang" (OMCG) has been regularly used in the course of these sentencing proceedings, it is not as far as I can see a concept known to current ACT legislation. The term is used in explanatory material tabled in connection with a recent Bill to amend the Crimes Act in relation to drive-by shootings and the establishment of crime scenes without warrant, but it is not defined, or even used, in the Bill itself. However, for present purposes, there does not appear to be any dispute that the Rebels are identified as an outlaw motorcycle gang in a number of Australian jurisdictions.
6. Stephen Pattman claims to have joined the Rebels to protect his daughter, who had started, and continues to be in, a relationship with the ACT State President of the Rebels, Ali Bilal. His son, Christopher Pattman, joined at the same time to support his father. When the Pattmans left the Rebels in 2014, some tension arose between them and Mr Bilal.
7. The following material is drawn from the two statements of facts.
8. Sometime in April or May 2015, the Pattmans were given a modified and shortened .44 Magnum revolver. They sourced 'American Eagle' brand .44 calibre ammunition for the firearm.
9. Eventually, a meeting was organised for 2.00 pm on 29 August 2015 to sort out a 'peace deal'. Christopher Pattman attended his father's home well before the proposed meeting. At about 1.30 pm that day, Houssam Haddad and another Rebel called Barry Avery drove to Stephen Pattman's home. They parked directly in front of the house. Mr Avery got out of the car and met Christopher Pattman at the front door of his father's house. Stephen Pattman was inside the house. Mr Avery apparently told Christopher Pattman words to the effect that, "I've been told that I'm not allowed to come here, to come inside and/or speak to you." Mr Avery also said "the boys got to me this morning." Mr Avery appeared shaken.
10. Stephen Pattman then left the house to speak with Mr Haddad, who had remained in the car. Christopher Pattman picked up the revolver, put it down the front of his pants, and followed after his father.
11. A heated argument began between Stephen Pattman and Mr Haddad, with Stephen Pattman telling Mr Haddad several times to "fuck off" and "get out of the street". Stephen Pattman was standing next to the driver's side window of the car.
12. During the argument, Mr Haddad told Mr Avery to get back into the car. Mr Avery was slow to respond. Mr Haddad said words to the effect that if he did not, he would "put one in his leg." Stephen Pattman asked Mr Haddad whether he was "tooled up?", that is, "did he have a firearm?". Mr Haddad replied that he didn't. Mr Avery didn't get back into the car.
13. The argument continued and eventually Stephen Pattman turned to Christopher Pattman, who was standing nearby, and said words to the effect, "get me the cannon". Christopher Pattman pulled the .44 Magnum from the front waistband of his trousers and gave it to Stephen Pattman. Stephen Pattman raised the revolver and aimed at the gap between Mr Haddad's head and the driver's seat head rest and held the revolver with two hands to stabilise the revolver in the event of any recoil upon firing the weapon.
14. Stephen Pattman was about a metre away from Mr Haddad when he pulled the trigger. The revolver discharged and the bullet passed through the driver's seat and front passenger seat head rests and then shattered the rear passenger side window before exiting the vehicle. Thereafter, the trajectory of the bullet went in the direction of Diamantina Crescent, which is a residential area. It is not known where the bullet came to rest.
15. Mr Haddad suffered minor bleeding to his right ear. He thought he had been shot. Once he had regained his composure and realised he hadn't been shot, Mr Haddad put his car into reverse and then drove away.
16. Upon hearing the revolver being fired, Christopher Pattman grabbed an axe from the rear tray of a vehicle that was parked nearby and hid behind a nearby caravan parked on the front lawn.
17. Mr Avery ran from the scene along the street and then into Diamantina Crescent.
18. Shortly thereafter, Stephen Pattman phoned Mr Bilal to tell him about the shooting. In the meantime, Christopher Pattman put the revolver in the bush near the house.
19. Mr Bilal drove to Stephen Pattman's home shortly thereafter and spoke to Stephen Pattman. During the conversation, Stephen Pattman unloaded the revolver, cleaned it of fingerprints, and gave it to Mr Bilal. Mr Bilal told Stephen Pattman that he was going to return the revolver to Mr Haddad. Mr Haddad did not make a complaint to police about the shooting.
20. On 30 August, 2015, the police received anonymous information about the shooting and whereabouts of the .44 calibre Magnum revolver that was used in the shooting. Police also spoke to Mr Haddad who told them that he was uninjured but refused to provide any further assistance.
21. Stephen Pattman contacted ACT Police Taskforce Nemesis on three occasions, and also New South Wales Taskforce Raptor about the incident.
22. On 31 August 2015 police located the revolver secreted behind a rubbish bin near some fast food outlets at Emu Bank, Belconnen. Police also spoke to Mr Haddad, who showed police his vehicle and the damage caused by the bullet. He was reluctant to provide any further assistance. Police executed a search warrant in relation to Mr Haddad's vehicle the same day.
23. Both Stephen and Christopher Pattman participated in records of interview with police on 1 and 2 September 2015 respectively. Each of them made admissions and claims regarding the incident.
24. On 16 December 2015, police executed a search warrant of Stephen Pattman's home. Stephen Pattman told police there was a sawn-off double-barrelled 12-gauge shotgun on the couch in the living room, which he kept for protection. He gave evidence before me that this was because threats had been made against him and his son, and shots had been fired at his house on several occasions. Police seized the gun, which contained two live shotgun cartridges. They seized 20 more cartridges from other locations on the premises. Stephen Pattman had no licence or permit to possess the shotgun.
25. On 15 February 2016, Stephen Pattman was charged with three offences arising out of these incidents, and pleaded not guilty in the Magistrates Court.
26. On 20 May 2016, Christopher Pattman was charged in the Magistrates Court with two offences arising out of the first incident, to which he pleaded not guilty.
27. Both men were committed to this Court for trial in August 2016. On 17 May 2017, a week before the date scheduled for their trial to begin, and after negotiations with the Crown, Stephen Pattman and Christopher Pattman were both arraigned in the Supreme Court. Stephen Pattman pleaded guilty to the endangering life offence and Christopher Pattman pleaded guilty to the unauthorised possession offence. Those pleas were accepted in full satisfaction of an indictment also containing another charge against each man.
28. Neither Stephen Pattman nor Christopher Pattman has spent any time in custody in respect of these charges.
29. As well as the two statements of facts, the following material is in evidence before me:
(a) a victim impact statement by Houssam Haddad;
(b) criminal histories for the two offenders;
(c) a pre-sentence report for Stephen Pattman dated 6 July 2017;
(d) a pre-sentence report for Christopher Pattman dated 21 July 2017;
(e) an intensive correction order (ICO) assessment for Stephen Pattman, dated 25 October 2017; and
(f) an ICO assessment for Christopher Pattman dated 17 October 2017;
30. all of which were tendered by the prosecution. The defence tendered:
(a) a reference from Stephen Pattman's estranged wife;
(b) a Calvary Hospital Emergency Department Record for Stephen Pattman dated 25 May 2017, referring to Stephen Pattman's attendance on 11 March 2016 at Calvary Hospital where he was diagnosed with anxiety after his suspected paranoia over dangers from the Rebels was accepted as based in reality;
(c) a reference from Christopher Pattman's partner; and
(d) payslip advices for Christopher Pattman from a NSW labour-hire firm.
31. As well, oral evidence was given by Stephen Pattman. That evidence will be mentioned when relevant.
32. In considering the objective seriousness of the offences, I have had regard to the following matters. Three of the offences I am dealing with today, including one of the offences to be taken into account in sentencing Stephen Pattman, carry maximum penalties including imprisonment for 10 years. They are all regarded by the community as potentially serious offences. However, Stephen Pattman's discharge of the firearm, that is the act endangering life, is in my view the most serious of these offences in this case.
33. Fortunately for everyone involved in this matter, Mr Haddad was not hit by the bullet shot at him. As noted, he later told police he was not injured in the shooting, but the statement of facts noted that there was minor bleeding to his right ear, and in his victim impact statement, which I shall come back to, Mr Haddad claims his hearing is still affected.
34. Stephen Pattman made a number of claims to police about the shooting, including that he had not planned the shooting, that he did not intend to harm Mr Haddad, that he was experienced with firearms, and that he knew the bullet would miss Mr Haddad. Stephen Pattman gave evidence before me that for some 10 years, well before these incidents, he had been licensed to have firearms. As will emerge, he told the presentence report author that he acted in self-defence and told the ICO assessor that he believed that he had saved someone's life that day. On the other hand, although it is clear that there was some kind of verbal confrontation between Mr Pattman and Mr Haddad, it seems that Mr Haddad did not at any stage even get out of his car, and he told Mr Pattman that he was not armed. Thus, the apparently perceived threat, to Mr Pattman or anyone else, is not clear, and nor is it clear how Mr Pattman saw his actions as a rational response to whatever the threat was.
35. Stephen Pattman, when giving evidence, accepted that he could have walked away from Mr Haddad, but said that he had believed Mr Haddad was armed. I note in this context Stephen Pattman's unchallenged evidence that a couple of months before the August 2015 incident, he and Christopher Pattman had spoken to two uniformed officers at Gungahlin Police Station about their concerns for their safety. There was no evidence before me about what, if anything, had resulted from this discussion.
36. The prosecutor suggested that despite the contents of the agreed statements of facts, Stephen Pattman and his son were still members of the Rebels at the time of the shooting and that there should be no leniency for a shooting resulting from a dispute among members of an outlaw motorcycle gang. Perhaps more relevantly, a dispute apparently emerging from the Pattmans' attempt to leave the Rebels, irrespective of the exact progress of their departure, does not on the face of it require particular severity any more than a similar shooting involving people with a different kind of relationship. I note at this point that there has been no suggestion in the evidence put before me, and not even any unsubstantiated claim made, that the Pattmans have joined any rival motorcycle gang, so it is hard to see that the particular circumstances of this departure should require extra severity.
37. In relation to Stephen Pattman, the pre-sentence report author reports that while not apparently disputing the facts:
Mr Pattman made justifications for the offences, stating he acted in self defence and displayed limited insight into his offending behaviour. It appeared during the interview that Mr Pattman did not consider community safety when he discharged a firearm in a suburban area.
38. Stephen Pattman told the ICO assessor that he:
agreed with the Agreed Statement of Facts [and]...accepted that he discharged the weapon. He said that his actions were the "greatest regret of his life", however justified his actions, stating that the offence was "equal to the threat" that he perceived, and he expressed a strong belief that he saved a man's life on that day.
39. Christopher Pattman told police that when he followed his father outside with the revolver, he did not intend to pull it out "unless it was very well necessary", and that when his father asked him for the "cannon", he felt that it was necessary to produce the revolver.
40. I am satisfied beyond reasonable doubt that Christopher Pattman thought that the revolver, or at least the production of the revolver, might play a role in dealing with his father's visitors, although I am also satisfied that his intention would have been to protect his father, as distinct from threatening or shooting the visitors for any other purpose. I am also satisfied that Christopher Pattman initially took the revolver out to the street without his father's knowledge.
41. The ICO assessor reported Christopher Pattman's attitude to the offence as follows:
Mr Pattman agreed with the Case Statement, accepting responsibility for his actions in the offence and at no time did he attempt to minimise or justify these actions. Mr Pattman displayed empathy for the victim of the current offence and acknowledged the risk he posed to community safety having possession of a prohibited firearm.
42. A victim impact statement was exhibited. In it, Mr Haddad says that since the shooting he has feared for his life. Among other things, he easily becomes "paranoid", he is oversensitive to sudden movements and noises, and he is often on edge and nervous. He does not sleep well. The hearing in his right ear remains affected. Mr Haddad says he has changed from a formerly social person to a person who has to limit his social activities because of his difficulty in trusting other people, even friends, among whom he used to count Stephen Pattman. Mr Haddad's partner has not wanted to live in his house since the incident. Mr Haddad has not been able to work at his shop as much as before the shooting, and he has felt the need to sell his cars and bikes because they were well known as his.
43. Mr Haddad's victim impact statement also contained a paragraph suggesting that he and the two Pattmans were "mates", that they had eaten at his place and played with his kids, and that they had all ridden their motorbikes together. He expresses frustration at the "betrayal and broken trust".
44. Stephen Pattman, however, gave oral evidence denying that he and Mr Haddad were "mates". He said that he socialised with Mr Haddad in various circumstances, but only as part of the socialising required by Rebels' membership, and that he would not have been involved in this by choice.
45. I accept that the impact of the shooting on Mr Haddad would have been substantial, in particular as a result of the impact on his peace of mind, his sense of wellbeing, and his capacity to live a full life by participating in the life of the community. I am not convinced that Mr Haddad's claimed sense of betrayal by a man he thought was his mate has any particular significance; the description in the statement of facts of the heated argument that developed between Stephen Pattman and Mr Haddad, and Mr Haddad's apparent threat to shoot Mr Avery in the leg, does not suggest to me a trusting personal friendship between Mr Pattman and Mr Haddad that was only ended by Mr Pattman's alleged "betrayal".
46. The prosecutor at one point also suggested that Mr Pattman's denial of the friendship asserted by Mr Haddad undermined Mr Pattman's credibility, but seemed to back away from that proposition when challenged. In any case, since the evidence given by Mr Pattman was largely if not entirely consistent with the agreed statement of facts, the consequences of a challenge to his credibility are not immediately apparent.
47. The offenders claimed that each of the firearms possession offences was committed for defensive purposes. Stephen Pattman told the police during the December raid that the loaded shotgun was kept in his living room for protection, while Christopher Pattman said that he took the revolver with him, when he followed his father to the car, intending that it be used only if "very well necessary". Noting Stephen Pattman's use of the revolver that constituted the offence for which he is being sentenced, which he also claims was in selfdefence (albeit not in a situation which would excuse him from criminal liability), there is nothing before me to suggest that either man, then or otherwise, was inclined to use the firearm concerned for offensive rather than defensive purposes. On the other hand, I note that in Yammine v R [2010] NSWCCA 123 (Yammine), the NSW Court of Criminal Appeal held that having a defensive motive is not a mitigating factor, at least in relation to a possession offence (although it does seem possible that having an offensive motive might be an aggravating factor).
48. I assess Stephen Pattman's two offences as tending towards mid-range seriousness. Christopher Pattman's possession of the firearm, while suggesting an even more immediate recognition that the firearm might be used than that admitted by his father in relation to his possession offence, arose from a spur-of-the-moment decision in a situation perceived as dangerous, it seems to me to be a little further below mid-range seriousness.
49. I have also had regard in this sentencing to the subjective circumstances of each offender.
50. Stephen Pattman is now 50 years old. He has no criminal history in the ACT. There are two NSW offences dealt with in 2006 for which small fines were imposed; these arose from Stephen Pattman leaving a firearm with a friend who, contrary to his belief and expectation, was not licensed to store it and did not in the event store it safely.
51. The ICO assessor described Stephen Pattman's background as follows:
Mr Pattman reported he was raised in Dapto, NSW by both parents. His parents separated when he was 12 years of age, as their relationship was marred by alcohol abuse, drug use and domestic violence. He lived with his father after the separation, however did not spend much positive time with him due to his father's alcoholism. At 16 years of age, Mr Pattman moved out of home and began living with friends before relocating to the ACT at 19 years of age.
Mr Pattman reported he met his wife at 19 years of age and the couple married in 1988. They have two adult children who no longer reside in their home. Mr Pattman advised his marriage had experienced some difficulties over the years, however mostly consisted of fond memories prior to his decision to join an Outlaw Motorcycle Gang (OMCG). Mr and Mrs Pattman have been separated since this offence occurred, however they remain living together. Mr Pattman hopes to repair this relationship in the future.
Mr Pattman's son was the co-offender in the above charges. Mr Pattman reported their relationship can be strained at times due to the current charges. Mr and Mrs Pattman no longer have contact with their daughter, as she remains in a relationship with a high ranking member of an OMCG. They both described a happy family, holidaying often together before their daughter became involved in the OMCG, which allegedly contributed to Mr Pattman and his son's decision to join the gang and ended with the current charges.
...
Mr Pattman reported ceasing his formal education after completing Year 8. He stated school was difficult for him and he achieved poor grades throughout. It is noted he was diagnosed with ADHD in his 30s, which may have been a contributor to his poor performance at school.
Mr Pattman began paid employment when he was 15 years of age and worked as a labourer for 15 years for various construction and landscaping companies. He stated he began gold prospecting in 2010 and has a registered business. He advised he has not sold any gold since January 2016. He is aware he would not be able to continue this business should he be sentenced to an ICO as he would not be able to travel outside the ACT. He also advised he had worked for a landscaping company from 2010 to 2013 and was prospecting full time from 2014 to 2016.
Mr Pattman has been receiving a Centrelink allowance since September 2016.
...
Mr Pattman advised he does not spend time with anyone apart from his estranged wife. He stated he rarely leaves the home due to a fear for his safety.
He stated he has not associated with any members of any OMCG since 2014, apart from his daughter's partner up until mid-2017.
...
Mr Pattman advised he has not consumed any alcohol or drugs for over two years.
...
[He] reported he does not partake in any pro social organised activities.
...
ACT Health provided a letter on 8 June 2017, which provided a diagnosis of Cannabis Use Disorder and stated [Mr Pattman] was suffering from 'situational crisis' in relation to a three day admission to the Adult Mental Health Unit in March 2016. Mr Pattman disputed the diagnosed disorder, stating he was not under the influence of drugs at the time he was admitted. He stated he had attended for assistance to manage his feelings of fear and anger in relation to his situation and the staff had not believed his story and thought he was under the influence of drugs.
Mr Pattman stated he had been diagnosed in his 30's with ADHD and depression and was prescribed medication for a period of approximately 10 years by a psychiatrist. The psychiatrist relocated to Tasmania and did not refer Mr Pattman to another specialist; therefore he was unable to get the medication prescribed to manage his symptoms. He recently attended an appointment with his general practitioner who prescribed anti depressant medication.
52. Mr Pattman completed a Personality Assessment Inventory (PAI) and interview with a provisional psychologist for the purpose of identifying mental health treatment concerns ... Below is a summary provided by the assessing provisional psychologist.
Mr Pattman is presenting with symptoms consistent with a provisional diagnosis of Major Depressive Disorder 296.24...with current major depressive episode and moodincongruent psychotic symptoms. He would benefit from further assessment by a psychiatrist and possible medical intervention as indicated. He would benefit from psychological intervention using an evidence-based methodology such as cognitive behavioural therapy. Such intervention should be focused upon improving his mood, reducing anxiety and improving interpersonal functioning. The results of a PAI assessment further indicated the following symptoms that should be investigated further; paranoia, traumatic stress and affective reactivity.
53. Stephen Pattman gave evidence that around 2011 he joined the Rebels, despite never having had any association with them or any interest in motorcycles, in the hope of protecting his daughter. Among other things, this necessitated him selling a boat, which he described as his "pride and joy", so that he could buy a motorcycle, although he conceded that it was not necessary to own a bike in order to become a Rebels "nominee". During the first 12 months, as a nominee, he was in contact with his daughter and Mr Bilal, but had no social relationship with other members of the Rebels, except that he took part in the compulsory bike rides with other members. Mr Pattman pointed out that during his four years with the Rebels, he had not been charged with any criminal offence.
54. Stephen Pattman said that he and his son had tried four times to leave the Rebels in the four years they were members, but that this had caused conflict between Mr Bilal and Mr Pattman's daughter, and within Mr Pattman's family as well. Stephen Pattman and Christopher Pattman were also concerned about retaliation from remaining Rebels. Stephen Pattman said that after the incident, he and Christopher Pattman and his son's partner had left Canberra and had spent most of the next 12 months in hiding in a caravan in a state forest.
55. Stephen Pattman had not suffered physically, but his mental health had declined, and in March 2016, as already mentioned, he had presented himself at Calvary Hospital seeking mental health help. He had been medicated for Attention Deficit Hyperactivity Disorder (ADHD) and depression for some 15 years but had no current prescriptions. He had also sought help with mental health problems from Canberra Hospital.
56. Stephen Pattman says he no longer has a relationship with his daughter. He gave evidence of having been told by Mr Bilal that associates of Mr Haddad intend to take revenge on him, including if he is imprisoned.
57. Mr Pattman explained that he had used cannabis for many years to "slow himself down" in the evenings after taking dexamphetamine during the day for ADHD, but had given up cannabis after Christopher Pattman was charged with drug-driving. He does not abuse alcohol.
58. The ICO assessor commented on Stephen Pattman's risk of re-offending as follows:
Mr Pattman is assessed as a medium high risk of reoffending. This is due to his lack of employment, lack of social supports, and mental health. It appears his mental health is impacting his ability to leave his home, therefore gaining employment and forging new supports and relationships may be difficult. Should he gain support to manage his mental health appropriately, the other risk factors will be more easily addressed, which in turn, may reduce his risk of reoffending.
59. Finally, I note that Stephen Pattman is assessed as not suitable for community service due to his mental health problems.
60. Neither of the assessments of Stephen Pattman identified any particular rehabilitation needs except as regards his mental health. As already mentioned, a psychological assessment has been provided to the ICO assessor, which includes a diagnosis of Major Depressive Disorder with current major depressive episode and mood-incongruent psychotic symptoms, and a suggestion that treatment such as cognitive behavioural therapy may be useful.
61. Necessary mental health support would presumably be available to Mr Pattman in custody, but may be more effective in the community.
62. As to Christopher Pattman, I note first that he is 29 years old. His criminal history the ACT consists of several minor traffic offences in 2011, and an offence of drug-driving in 2016 for which a non-conviction order was made.
63. The ICO assessor reports on his background as follows.
Mr Pattman was born and raised in Canberra, the eldest of his parents' children. He has one younger sibling with whom he has an estranged relationship. Mr Pattman reported a stable upbringing, noting there was an absence of alcohol, drugs, and family/domestic violence. Mr Pattman's father is the co-offender in the current offence. He stated he had a close relationship with his father, however since this matter has been progressed through Court he has distanced himself from him.
Mr Pattman is currently in a stable, supportive and prosocial relationship with his partner of seven years and has no dependents. Mr Pattman reported his partner has been his main support in the community since the current offences.
...
Mr Pattman left formal education after completing Year 7. Since leaving school, he has consistently been employed in the construction industry.
Currently, Mr Pattman is employed on a full time basis with a waste management transfer station in NSW. He works six days a week and noted this has his primary source of income. Mr Pattman's employment has been stable for the past 12 months and he has recently been promoted, offering him more opportunities to expand his skills and qualifications within the company. Mr Pattman is regarded highly by his peers and employer...
64. Mr Pattman reported that prior to the offence he was a member of and had associations with those involved with an OMCG. Since leaving the OMCG Mr Pattman has dissociated himself with anyone known to have any level of involvement with such an OMCG. Mr Pattman described the time he spent with the OMCG as the lowest point in his life.
Mr Pattman has developed friendships with two people where he resides in NSW. They share similar interests and have no criminal histories noted. Mr Pattman describes them as a prosocial influence for him.
...
Mr Pattman described a history of cannabis use from the age of 17 to 21 years. He was sent for a urinalysis drug test on 15 September, 2017, which returned a negative result to all illicit substances and alcohol. Mr Pattman reported he socially consumes alcohol and does not consider his use to be problematic...
Mr Pattman attends a gym on a daily basis prior to work. He further reported he has an interest in becoming a member of the Rural Fire Service for his local area, however, with his current employment requirements, he is not able to make this commitment.
...
Mr Pattman reported no medical or physical health issues. This was verified with information obtained from ACT Health...
65. Although Mr Pattman in fact declined to sign the ICO consent form because he does not wish to return to the ACT, his counsel explained that, if necessary, he would return to the ACT and submit to ICO supervision if this was an alternative to serving his sentence in full-time custody.
66. Christopher Pattman's offending does not appear to have been attributable to anything except family loyalty and perhaps fear, and since then he appears to have built a prosocial life for himself away from his father and, more significantly, away from the ACT Rebels and from motorcycle gangs more generally. I can identify no relevant rehabilitation needs.
67. I consider that it would be undesirable to sentence Christopher Pattman in such a way as to require him to return to live in the ACT. Nor do I consider that his offence, while certainly requiring the imposition of a prison term, requires any immediate full-time custody. On the other hand, a requirement to perform community service would be a desirable way to emphasise community disapproval of his actions. Christopher Pattman's counsel reported that ACT Corrections have confirmed that community service can be performed in blocks, so I understand that there should be scope for Christopher Pattman to perform community service several days at a time during visits to the ACT.
68. Both offenders pleaded guilty very late and after negotiations about the charges. Nevertheless, those pleas had utilitarian value as well as indicating some remorse, and they will be recognised with a sentencing discount.
69. There is no doubt that general deterrence is a significant factor in this sentencing. I accept the prosecutor's submissions to the general effect that drive-by or other shootings in public places generate community concern, although I am not convinced that a public shooting with a link to a motorcycle gang necessarily produces more community concern than any other form of public shooting. I also agree that it is important to try to deter people from possessing firearms without authority.
70. Personal deterrence, on the other hand, may not be quite so significant in the current cases.
71. Stephen Pattman's age and his relatively clean record, his expressed regrets about the current offences, and the serious disruption to his life that has been caused by them, leave room for hope that he will think a lot harder before again engaging in the illegal possession or use of firearms.
72. Christopher Pattman's departure from the ACT and his establishment of a different and apparently pro-social life in NSW suggests that he is in little need of particular deterrence beyond what would be provided by a prison term hanging over his head for some time into the future.
73. The Crown says that both offenders must be sentenced to terms of imprisonment, and that Stephen Pattman's sentence must be longer than could be accommodated under the ICO regime, although the prosecutor did not provide anything in the way of comparable cases for me to consider.
74. Defence counsel conceded that prison sentences were inevitable in this case, without conceding that they would necessarily involve any immediate full-time custody.
75. This is a very unusual set of circumstances, and I have felt obliged to consider what seem to be in some respects comparable cases, in order to identify some kind of framework or range in the context of which to determine the current sentences (noting, of course, that any such range is not necessarily the correct range, and that the upper and lower limits of a range discerned are not necessarily the correct upper and lower limits (see Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520)).
76. The prosecutor referred me to several NSW Court of Criminal Appeal cases for statements of principle about sentencing for firearms offences (being Cramp v R [2008] NSWCCA 40, Yammine, and R v Tolley [2004] NSWCCA 165) to the general effect that courts must enforce firearms legislation (presumably like other legislation), and more specifically that severe sentences are appropriate for people who "are minded to use firearms to resolve their disputes" (the case of R v Micallef (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ, Allen J and Mahoney JA, 14 September 1993) is relevant here). A number of ACT sentences, however, seem to provide more help in determining appropriate sentences for this case.
77. As to offences of possessing firearms, I note the following cases:
(a) In R v Hill (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012) (Hill), the offender, who had a minor criminal history, had been a member of a motorcycle gang for 7 years before the offence but had since left the gang. For possessing a prohibited firearm, he was sentenced by Neild AJ to 9 months imprisonment fully suspended.
(b) In R v Hughes (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 8 August 2013), the offender had a significant criminal history and was at the time of the offence on conditional liberty. He had a sawn-off shotgun in his home which Nield AJ inferred was intended for use in committing crimes. Offences of possession of ammunition and also cannabis were taken into account and Mr Hughes was sentenced to 32 months imprisonment, reduced from 36 months, one month of which ran concurrently with another sentence.
(c) In R v Okwechime [2015] ACTSC 129 (Okwechime), Burns J noted that the claim that Mr Okwechime possessed two prohibited firearms, one of them found loaded, and four other prohibited weapons, for protection from members of the Rebels motorcycle gang had "little effect in mitigating sentence" (at [17]). Mr Okwechime was much younger than Stephen Pattman, but had an extensive criminal history. He had committed the possession offences in breach of good behaviour orders, had behaved badly in custody, had been non-compliant with community-based orders, had poor prospects of rehabilitation, and required personal deterrence. Mr Okwechime was sentenced for the possession offence for 16 months imprisonment, some of it concurrent with sentences for 4 other weapons offences dealt with in the same sentencing process.
(d) In R v Thompson [2017] ACTSC 141, the offender had a substantial criminal history. He possessed an unregistered Magnum revolver which had been used in a robbery, for which possession he was sentenced by Burns J to 22 months imprisonment, reduced from 30 months for his plea of guilty, all but 8 months of which was to run concurrently with other sentences.
78. As to comparable sentences for acts endangering life:
(a) In R v Parkinson (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 6 March 2013) the offender endangered his partner while attacking his car with an improvised weapon similar to a heavy mace. His criminal record consisted mainly of traffic offences, but included three assaults, one occasioning actual bodily harm, and two offences of possessing knives with intent. I sentenced Mr Parkinson to 32 months imprisonment reduced from 48 months for his plea of guilty.
(b) In R v Bryant [2014] ACTSC 128, I sentenced an offender who had committed a large number of armed robberies at clubs and fast food outlets in the ACT and NSW to 3 years and 7 months imprisonment, reduced from 4 years. He had discharged a sawn-off shotgun in the general direction of a staff member who had been dismissive of his demand for money. The sentence was to be served so as to add 6 months to the total sentence.
(c) In R v Watson [2014] ACTSC 395, the offender, who had a substantial criminal history, was sentenced by Walmsley AJ for an act endangering life that involved a violent and very dangerous assault on his former partner. He was sentenced to 4 years imprisonment, reduced from 4 years and 6 months, for his plea of guilty.
(d) In R v Stott [2017] ACTSC 248, a young man with some serious offences on his criminal history committed an offence of being knowingly concerned in a driveby shooting which targeted a house occupied by several people, one of whom was grazed by one of the bullets when it entered the house. I sentenced Mr Stott to 3 years and 2 months imprisonment, reduced from 4 years. Two years of that sentence was to run concurrently with sentences for other serious offences.
79. Finally, in R v JF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 December 2013), an offender who had a lengthy criminal history and was on parole at the time of the relevant offences was sentenced by Burns J for an act endangering life and for a firearm possession offence.
80. The act endangering life was constituted by using a shotgun to shoot into the victim's house, towards the mattress where the victim was sleeping. Fortunately, the pellets travelled over the mattress where the victim was sleeping and hit the wall behind. JF said that he only intended to scare the victim and thought the victim might not even have been at home.
81. JF was also sentenced for unauthorised possession of the shotgun, an offence which at the time carried a maximum penalty of only 5 years imprisonment.
82. For the shooting offence, JF was sentenced to 21 months imprisonment, reduced from 24 months, and for the possession offence, to 6 months imprisonment concurrent with the other sentence as to 3 months.
83. The following matters may be noted by reference to the cases I have just mentioned.
84. First, Stephen Pattman is notable for having a virtually clean criminal record, despite being the oldest by quite some years among the offenders I have mentioned. Secondly, two of the comparable cases, Okwechime and Hill, involved offenders either linked to or in conflict with motorcycle gangs, both of whom received, for the possession offences, relatively short sentences, in one case running substantially concurrent with other offences for which he was also sentenced; and in the other case, fully suspended.
85. The sentences for acts endangering life (all involving plea of guilty discounts) range from 21 months up to 4 years. It is worth expanding a little on the endangering life incident for which Mr Watson was sentenced to 4 years imprisonment. The sentencing judge gave the following description of the incident:
86. In my view, Mr Watson's offence was a considerably more serious example of the endangering life offence that Stephen Pattman's offence, even though it did not involve a firearm or a motorcycle gang.
87. Finally, I note that in most of the cases I have outlined, the sentences for the relevant offences were to run concurrently, sometimes quite substantially, with sentences for other offences. If I were sentencing for Stephen Pattman's possession offence separately, there would be some, possibly substantial, concurrence between the two sentences, given that the two offences are clearly linked, despite being committed several months apart. While it may be reasonable to expect that in sentencing Stephen Pattman, the fact that I am to take into account another significant offence committed several months after the shooting will increase the sentence to be specified for the shooting, I cannot see that the shooting sentence needs to reflect, in effect, a sentence for the shooting and an entirely accumulated sentence for the possession offence.
88. Stephen Pattman, please stand. I record a conviction on one charge of act endangering life, I also note the scheduled offences of:
(a) unauthorised possession of a prohibited firearm; and
(b) unauthorised possession of ammunition;
and I have taken them into account in sentencing for the offence of act endangering life.
89. I now sentence you to imprisonment for 3 years and 11 months, reduced from 4 years and 4 months, and I now order that the sentence be served by way of an ICO. The ICO is subject to the standard core conditions for ICOs. I note the advice from the assessor, that your mental health, anger, and employment, and your relationships, will be particularly targeted under the implementation of the order. As well as the core conditions, I also impose the following special conditions:
(a) that you are not to be in possession of any firearm or any prohibited weapon of any other sort;
(b) that you do not associate with any person who you believe to be associated with an outlaw motorcycle gang; and
(c) that before close of business today, which you should assume is 4 pm, you attend Corrective Services at Level 1, 249 London Circuit, to arrange supervision under your intensive corrections order.
90. Now, Mr Pattman, I need to try and explain the significance of that order to you. I assume that the ICO assessor has already explained to you how an ICO works, and you may already have talked to Ms Taylor about it, but I also need to say a few things to you about it.
91. Your sentence will start to run today and it will run for 3 years and 11 months (3 November 2017 to 2 October 2021). If you comply with all your ICO requirements, do as your supervisor tells you, and generally keep out of trouble, then at the end of that 3 years and 11 months, you will have finished your sentence without any time in custody. If you commit another offence during the 3 years and 11 months that has got a prison sentence attached to it, and that means an offence that carries a term of imprisonment, not necessarily an offence that you get sentenced to imprisonment for, you will come back here and you will have to be re-sentenced.
92. The expectation under the legislation seems to be that at that point, if you came back here having committed another offence that carries a prison term, you would be required to serve out the rest of your term in full-time custody. That is not an absolute guarantee, but you should assume that that is what will happen if you commit another offence with an imprisonment penalty in the next 3 years and 11 months.
93. Apart from committing offences, if you breach the ICO or don't comply with the directions from your supervisor then there are various things that your supervisor or Corrective Services can do to deal with that, starting with giving you warnings (and I understand you can't get more than 3 warnings in a year), and moving up to putting you in prison for short periods, either 3 days or 7 days at a time, to remind you that this is a serious matter.
94. Finally, if your supervisor or the intensive correction authorities are completely dissatisfied with your behaviour and with your compliance with the order, then the ICO may be cancelled, and you will then find yourself serving the rest of the sentence, so from that date until 2 October 2021, in full-time custody without ever coming back to the Court. It won't be a discretionary matter for the Court, it will be entirely up to Corrective Services.
95. In agreeing to this order, Mr Pattman, you're taking a bit of a gamble, so you do need to make sure that you take it seriously. As I've said, if you don't take it seriously, you're at risk of serving possibly quite a lot of your sentence in full-time custody, perhaps without even being able to look forward to serving any of it later on parole in the community.
96. If you have any particular questions about what I've just said, please ask the court officials when you sign your documents or Ms Taylor, who I imagine will be available to talk to you after.
98. Christopher Pattman, please stand. I record a conviction on one charge of possessing a prohibited firearm.
99. I now sentence you to imprisonment for 14 months, reduced from 16 months, in recognition of your plea of guilty.
100. The sentence will be suspended with immediate effect, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 14 months.
101. The good behaviour order is subject to the core conditions, and also to the condition that in the next 14 months, you perform 80 hours of community service, which I note may need to be completed in blocks of two or more days at a time, and I order that that be noted in the sentencing order.
102. You will be given a written copy of the good behaviour order and it will be read to you by the court officials, but in short, it means that for the next 14 months, you need to keep out of trouble, and that, in particular, means that you need to make sure you don't commit any offence in the ACT or elsewhere that has an imprisonment penalty (even if it's not the penalty imposed on you), and secondly, you need to do your community service. You also need to make sure that, throughout that period, Corrective Services has uptodate contact details for you, and that you let them know if you are charged with any offence. But the really important things for you are that you don't commit any further offences during that period, and that you get on with your community service.
103. If you do commit another imprisonment offence during that time, or if you fail to do your community service, or if you otherwise breach your undertaking, you may find yourself back before this court to be resentenced for this offence, and depending on exactly how you've breached the undertaking, you could find yourself serving some or all of your sentence in full-time custody.
104. Your sentence will run from today, 3 November 2017, to 2 January 2019. But I should say to you, Mr Pattman, that unlike your father's sentence, with your sentence, because I've suspended the 14 months imprisonment, if you breach your good behaviour order that attaches to that suspension and you are brought back to the Court to be resentenced, you would still be looking at having to clear off the whole 14 months of that sentence. You only clear it off by serving a good behaviour order if you finish your good behaviour order properly.
105. Now I mention, particularly, to you, Mr Pattman, given that you do already have a drugdriving matter on your record even though there was no conviction recorded for that, that you would be a repeat offender if you were charged with drink-driving or drug driving under ACT law, and under ACT law, the drug-driving offence and the higher level drink-driving offences include terms of imprisonment for repeat offenders. So if you get picked up on another drug-driving offence or a higher level drink-driving offence, you would be a repeat offender, there would be a possible imprisonment penalty, and that would put you in breach of your good behaviour order. Now, given that you'll mainly be in NSW, I should say that I don't know if the position is exactly the same in NSW, but I think you should assume that even in NSW, a drink-driving or a drug-driving offence might be enough for you to breach your good behaviour order and be brought back here for re-sentencing.
106. For you too, if you have questions about this, please ask the court officials or Ms Taylor.
I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.