R v Dean

1. A schedule of the related offences is as follows: Offence Provision Maximum Penalty Plea Entered Sequence 1 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) 2 years' imprisonment and/or $5,500 fine 15/06/16 Sequence 3 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) 2 years' imprisonment and/or $5,500 fine 15/06/16 Sequence 9 Firearms Act 1996 (NSW), s 65(3) $5,500 fine 15/06/16 Sequence 11 Road Transport Act 2013 (NSW), s 112(1)(a) 9 months' imprisonment and/or $2,200 fine 04/04/17 Sequence 12 Crimes Act 1900 (NSW), s 58 2 years' imprisonment and/or $5,500 fine 04/04/17

1. Putting the matter very broadly, the offending conduct occurred at various times throughout 12 July 2015 in the context of the offender learning that his estranged wife (who had obtained an Apprehended Violence Order against the offender) had entered into a relationship with another man, who had hitherto been a friend of the offender.

Circumstances of Offending Conduct

1. At the trial, the offender had agreed to a large number of facts [4] , which I summarise below. The offender's Counsel set out some additional facts (not significantly disputed by the Crown) in the sentencing hearing [5] which are interwoven into the factual matrix set out below.

Contextual Matters

1. The offender is the ex-husband of Anne Dean. The offender and Ms Dean were married for approximately 10 years and had two young children. They separated in 2012.
2. In February 2015, there was an Apprehended Violence Order in force preventing the offender from contacting or approaching Ms Dean within 12 hours of consuming intoxicating liquor.
3. In July 2015, Ms Dean was in a relationship with Mr Paul Moschetti. Mr Moschetti was a friend of the offender. The offender learnt of this on 8 or 9 July 2015.
4. At the time of the offending conduct, the offender was not the holder of a firearms license or permit and the rifle was not registered.

Sequences 1 and 3

1. Beginning at about 4:11pm through to about 4:44pm on 12 July 2015, the offender started to make telephone calls and sent messages to Ms Dean's phone. The offender was heavily intoxicated at this time. The nature of the calls or messages was the threat of sexual violence or other physical abuse. Particulars of the offensive messages (which were mainly voice mail messages) may be catalogued as follows: 4:11pm "Hey fuckhead, get my fucking daughter to ring me understand? Or I'm gunna come there and I'm gunna fuck you in the arse." 4:14pm: "Ahhh fuckhead. You know you're gunna get a bashing. You and your fucking grumpy old fucking grandma mother fucker. You partying with the wrong dude mother fucker. Go fuck yourself. I'm gunna get you and your fucking zebb. Got it? Fuck you." 4:32pm: "Hey dickhead. You're partying with the wrong dude. I'm gunna come party with you, okay? I'm gunna fix you up 'cause my [unintelligible] … he's uncle to 'em not fucking your boyfriend to 'em. You understand that? And now we'll [unintelligible] .. fucking complications … Understand fuckhead? … That's what I'm talking about." 4:33pm: "I'm going to fuck you. I'm going to fuck Paulie."
2. At 5:30pm on 12 July 2015, Ms Dean attended Weatherill Park police station and reported her receipt of these messages. She returned to her residence at about 7:30pm.

Indictable Offence 1

1. Also at 5:30pm, Ms Grace Jasperson and Mr Justin Taylor visited the offender's property at Seven Hills. The offender drank more and more, and appeared agitated.
2. Ms Jasperson noted a box of bullets on the front porch area.
3. The offender asked Ms Jasperson to drive him to a property at Liverpool. There, he collected a semi-automatic .22 calibre rifle. On the way back to the offender's Seven Hills property, he loaded the magazine with 4 or 5 cartridges and attached the magazine. The offender loaded the magazine with some of the bullets which Ms Jasperson had seen on the front porch. The offender placed the remaining bullets in the pocket of his jumper.
4. Not long after he arrived home, at about 7:30pm, he fired the rifle 3 or 4 times into the air, in quick succession, within the hearing of Ms Jasperson, Mr Taylor and a neighbour, Mr Daly. He thereafter detached the magazine from the rifle. A single cartridge was left in the chamber of the rifle after the magazine had been detached. Later, when interviewed by the police, the offender said that he did not know that firearm was loaded. That is to say, he did not know that a cartridge was left in the chamber.

Indictable Offence 2

1. From 7:53pm to 8:34pm, on 12 July 2015, the offender made numerous further calls to Ms Dean's phone. Some were answered and some were not. Within this time period, the first few calls centred upon the offender's request to speak with his children. Ms Dean had indicated that they were showering and that she would get them to call back when they were dressed. The offender did not accept that explanation and kept on calling. At the time of these calls, the offender was intoxicated.
2. Then from 8:04pm through to 8:34pm, the content and tone of the offender's calls or messages became more ominous. By way of particulars: 1. at 8:04pm, the offender spoke with his children and was heard to say: "you better get under the bed because I'm going to come and put a bullet in your mum's head." 2. At 8:09pm, the voicemail message to Ms Dean was: "funny as fuck dipshit. I putting a bullet in your head tonight. See ya bye."
3. At 8:34pm, Ms Dean spoke with the offender, imploring him not to do anything with children present. The offender repeated his threat to kill and said words to the effect "I'm a minute away."

Indictable Offences 3-7 (incl.) (and sequences 9, 11 and 12)

1. The offender's premises at Seven Hills were about 13 kilometres, or a 20 minute car drive away from where Ms Dean was located in Fairfield West. The offender drove his Ford Ranger vehicle towards Ms Dean's place. I infer that he would have set out on his drive at about 8:20pm. The rifle was in the back seat. It had one cartridge in the chamber. He had left behind the magazine for the rifle.
2. The offender's vehicle was intercepted by police at a point where the offender's vehicle was only about 25 metres away from Ms Dean's residence.
3. There was a struggle to restrain the offender after the offender had failed to comply with police directions and he was handcuffed. The offender stated that there was a gun in the back seat of the vehicle. The police located the rifle. It still had a cartridge in the chamber. The magazine for the rifle was not in the vehicle.
4. He was observed by the police officers to be intoxicated; displaying slurred and slow speech with sluggish movements; and with a strong smell of alcohol on his breath. The police attempted to conduct an alcohol breath test without success.
5. In his later ERISP interview, early on the morning of 13 July 2015, the offender stated to the interviewing police that he was angered when he found out that Ms Dean and Mr Moschetti were in a relationship. He stated that he grabbed the rifle before leaving home but that he did not know that the firearm was loaded. His intent was to scare Ms Dean, by 'wav(ing)' it around and 'talk(ing) rubbish' and making a 'bit of noise'. He said he was unaware that there was a cartridge in the rifle and did not believe that the rifle could be discharged without the magazine.
6. Mr Christopher Preece, a crime scene officer attached to the forensic ballistics investigation section of the forensic services group, gave evidence at the trial. He stated that a cartridge could be left in the chamber after the magazine was detached from the firearm. He opined that the firearm was capable of being discharged without magazine when a cartridge was in the chamber. He did not however, physically test fire the firearm without magazine to confirm that opinion.
7. The offender was searched. Fifty .22 calibre cartridges were located in the offender's front jumper pocket. The magazine was located in a later search of the offender's residence (along with fifty-nine .22 calibre cartridges).

Sequence 1

1. The offender submitted that the making of the four threatening telephone calls (3 of which went to the victim's voicemail) was at the lower end of the scale of objective seriousness. The conduct spanned only a short period of time, involving a succession of calls in the period in which the offender was severely intoxicated. The offence could have been dealt with in the Local Court.
2. I agree that taking this series of events in isolation, the offending conduct was at the lower end of the scale. Although the threats related to the infliction of violence, sexual and/or physical, they were made within a short period and in my view, this particular victim well understood that they were made in a context where the offender was intoxicated and, to this point, there was little else to indicate a serious likelihood that the threats would be carried out.

Sequence 3

1. It goes without saying that the conduct the subject of related sequence 1 itself partly made out sequence 3, amounting, as it undoubtedly did, to harassment of Ms Dean and contact with her in contravention of the Apprehended Violence Order.
2. The seriousness of the offending conduct was exacerbated when, closer to 8:00pm there was a series of additional telephone calls. I was again reminded by Counsel for the offender that this conduct could also have been the subject of prosecution in the Local Court. Counsel submitted that the phone calls were not 'atypical' for an offence of this kind.
3. In my view, the conduct was objectively above the low range of conduct for this offence: it showed an arrogant disdain not only for Ms Dean, but also for the law more generally and the protection extended to victims of domestic violence. The conduct was not isolated, but spanned two different periods of time involving multiple attempted forms of contact.

Indictable Offence 1

1. As was pointed out, s 93G(1) of the Crimes Act 1900 (NSW) generally covers a range of different offending conduct. Plainly, the conduct described in s 93G(1)(c) is more serious than the conduct described in s 93G(1)(b), although both species of offending conduct carries the same maximum penalty. It has been said that, for the purposes of the offence in s 93G(1)(b), the scope for potential harm to others is a relevant consideration [6] .
2. Counsel for the offender notes that the firearm was pointed in the air, relevantly "near" a public place. It was discharged 3 or 4 times in quick succession. It was not pointed near Ms Jasperson or Mr Taylor and there is nothing to indicate a real risk of harm to either of them. Nevertheless, the discharge of this particular semi-automatic rifle would plainly have alarmed these individuals (and another witness who said he heard the discharge) in a suburban street on a Sunday night and generally amounted to a violation of the norms of civilised society that have seen the prohibition on weapons since at least 1996. The discharge occurred in the presence of others. It was, to some degree, a public act. Given the state of the offender's intoxication, it possibly portended other misconduct. This conduct is towards the mid-range of offending conduct for this particular offence.

Indictable Offence 3

1. This offence - a Commonwealth offence - is governed by the considerations in s 16A the Crimes Act 1914 (Cth).
2. The offending conduct comprised further telephone calls. It is accepted that the most serious of them was the offender's threat to kill Ms Dean which was conveyed to the children. No threats were made about the children.
3. It is also accepted that the threats to kill were made in the circumstances of domestic violence following the breakdown of a marriage where an Apprehended Violence Order was in place in order to protect the victim. It was said that the offending occurred in the context of the offender learning that the victim had recently commenced a relationship with Mr Moschetti, hitherto a good friend of the offender's. What was understated was the sense of outrage that the offender had regarding his perceived mistreatment by his children and/or Ms Dean stemming from his perception that he was being prevented from speaking to his children.
4. The facts indicate that there were multiple death threats, albeit over a relatively short period. To some extent they escalated in their intensity, culminating in the final message that the offender was only "one minute away", as if the offender was giving the victim a grizzly imminent preview of her impending death. It was calculated to terrify at a point when Ms Dean was imploring the offender not to involve her children - a plea that was apparently being ignored.
5. I consider that this conduct was at least at the mid-range of objective seriousness for offending.

Sequences 9, 11 and 12

1. These offences coincide, temporally, with indictable offences 3-7 (incl.), but by their nature they are conceptually distinct.
2. As to sequence 9, the offender accepted that the volume of the cartridges involved was significant such as to put the offence in the mid-range.
3. As to sequence 11, the offender emphasised that the police had not obtained an admissible blood alcohol reading. In effect, it was submitted that but for the offender's guilty plea the offence could not have been prosecuted. It was said, therefore, that only a nominal penalty should be imposed.
4. I disagree. The entry of the plea reflected the exercise of choice in the offender's perceived forensic interests. It spared the prosecution of the need for proof; for which the offender will receive a substantial discount on penalty. The offender's (positive) case at trial centred substantially upon the proposition that he was so intoxicated that he could not have formed any specific intent when he possessed the firearm and that such intoxication had emerged through copious amounts of drinking through the day, including to the point where he drove the vehicle towards the victim's home. To that end, reliance was placed upon the offender's high level of intoxication at the point when he was engaged in a struggle with the police to get out of the vehicle after it was intercepted.
5. The drive from the offender's place to the victim's place was about 13 kilometres. During the course of that drive, there was a serious risk of harm to other drivers, if not also pedestrians along the route path. I would place this offence in the mid-range.
6. As to related sequence 12, the offender submits that this conduct was at the low range, citing the absence of harm to the police officers involved. But there were a number of officers involved and there was a physical struggle which ensued in order to get the offender out of the vehicle. I would place this offence at the low-range.

Indictable Offences 3-7

1. Many of the salient facts concerning these offences, all of them relating to possession of the firearm, were not in dispute. It was not disputed that the offending in relation to the conduct establishing these offences (as distinct from providing the context for it) occurred in the narrow timeframe, being 8:30pm to 8:40pm on 12 July 2015.
2. But some factual questions were contentious. They mainly affect the objective seriousness of offence 7, but also impinge upon offences 4 and 6. Before turning to those disputed questions, it is pertinent to consider the objective seriousness of the other offences in respect to which the disputed questions do not materially affect assessment of their objective seriousness.

Indictable Offence 3

1. I accept that the Crown's reliance upon the offender's handling of a firearm under the influence is of a lesser category of seriousness than the use of the firearm. The conduct here fell below the mid-range of seriousness for this offence.

Indictable Offence 5

1. I accept the offender's submissions - which were not disputed by the Crown - that the relevant offending involved one (unaltered) weapon and that, set against the circumstances in some authorities to which the Court's attention was drawn [7] , the conduct fell at the lower end of the range for offences of this kind.

Offences 7 (and 4 and 6) - Some Important Disputed Questions of Fact

1. It was common ground that in a sentencing proceeding involving disputed factual questions: 1. the Court's factual findings must be consistent with the jury's verdict; and 2. the Court will not take facts into account in a way that is adverse to the offender unless the facts are established beyond reasonable doubt. On the other hand, where a Court is minded to find facts favourable to the offender, they are to be established on the balance of probabilities [8] .
2. The main contentious factual questions before the Court were: 1. whether the firearm in the offender's possession could, in fact, be discharged (without the magazine); 2. (if so) whether the offender knew it could be discharged. (This question subsumes the question whether the offender knew that it was loaded); and 3. whether the offender's intention to intimidate the victim was to be carried out by means other than brandishing the firearm.
3. The offender's Counsel submitted that the materiality of these factual questions is that they affected the objective seriousness of (at least) the firearm possession offence the subject of the trial: there was, it was submitted on behalf of the offender, a substantial difference between a finding that the offender's intention to intimidate was to be realised through brandishing, or waving the rifle, in the presence of Ms Dean and an intent to actually discharge it. In my view, the issue relates more to culpability, rather than the objective gravity of the offending.
4. At any rate, a conundrum arises from these factual disputes which inhere in the offence. That is, because (mercifully) the offender was intercepted by police, there is necessarily an evidentiary vacuum on the question as to how, or by what means the offender would have intimidated Ms Dean. This is a (past) hypothetical question. It goes without saying that it is easy for a person in this offender's position to make a self-serving statement as to what he would have done but for an unintended (from the offender's point of view) intervening act by a third party.
5. The offender said in his ERISP that his intention was to do no more than to wave the firearm around and perhaps add some words to accompany that particular conduct. He also said in his ERISP that he did not believe that the firearm could be discharged without the magazine attached or, putting the matter more simply, he simply did not believe that the firearm could go off. He did not articulate any meaningful basis for such belief and he was not asked to do so by the investigating police.
6. The offender elected not to give evidence at the trial which would have enabled the Crown to relevantly challenge the offender in respect to the existence or basis (or bases) for his stipulated beliefs.
7. The offender's Counsel pointed to concessions made by the Crown's ballistics expert (Mr Preece) which, Counsel said, suggested that even if the firearm could actually be discharged without the magazine, that expert could not discount the reasonable possibility that the offender's beliefs were reasonably based. Counsel noted that the expert had not himself fired the rifle without the magazine in his testing (a course that was desirable for no other reason than validating views formed from other testing) and that, even if the expert had sufficient expertise (experience) in venturing his opinion about firearms of this particular make or model, there may have been some unusual or exceptional reason why, in respect to this particular firearm, it was not capable of discharging without the magazine.
8. Counsel for the offender further submitted that the nexus between conduct comprising other offences was not related or could not be relied upon, to sustain positive findings, to the requisite standard, that the offender believed that the weapon could be discharged. That being so, the only alternative was to accept the offender's position that his intention to intimidate was to be realized through brandishing it in Ms Dean's vicinity.
9. The Crown initially submitted that the offender carried the onus of seeking to persuade the Court that it should find that he was ignorant of the risk of (or positively disbelieved) discharge of the weapon and therefore could not have had the intention of discharging the gun in the vicinity of Ms Dean, even if he did not intend to kill her. The Crown submitted that I could not accept, on the balance of probabilities, the offender's statements to the police in his ERISP to the effect that his intention was only to wave the gun and not discharge it. This was because the offender had avowedly told a series of lies to the police during the course of the ERISP. On that basis alone, I could discount the offender's credibility and thereby reject the evidence of what was said in the ERISP.
10. At any rate, the Crown submitted that the objective seriousness of the conduct (specifically for offence 7, but inferentially for other offences as well) was not materially affected by the question of what the offender intended to actually do with the firearm: it was objectively very serious that the firearm could be discharged (a fact that was established by the expert Mr Preece) and that the firearm was in the offender's possession at a time when he was severely intoxicated and his emotions were heightened. Alcohol and possession of a firearm did not 'mix'. I will return to this submission further below when addressing the question of objective seriousness of the offending conduct specifically for the firearm possession offence.
11. I am satisfied that the firearm was capable of discharge without the magazine attached to it. The evidence established that Mr Preece was not only an experienced ballistics expert but had extensive experience of the operation of firearms of the kind in question here. The possibility that this particular firearm may have exceptionally been affected by some irregularity was highly speculative. Further, I do not accept that the limitation of Mr Preece not conducting a fire-testing of the firearm without the magazine materially impinges upon the persuasiveness of his opinion. He said, and I accept, that the extent of his experience was such that the additional testing did not alter his opinion [9] .
12. As to the question whether the offender intended to discharge the weapon as the means of intimidating Ms Dean, generally, in my view, it would be a matter for the Crown to establish, if it sought to rely upon it, the means by which the intimidation of Ms Dean was intended to take place and, consistently with the authorities, that would require proof to the level of reasonable doubt.
13. Instinctively, I considered that the offender had a significant difficulty. If his intent was only to scare Ms Dean by brandishing the rifle, why was there any need for him to amass the ammunition? Further, viewed in context, the act of discharging the rifle on the offender's property (albeit with the magazine attached) could reasonably be inferred as a means of checking that the rifle could be discharged on a future occasion.
14. Nevertheless, whilst I do not accept all that was put on the offender's behalf, I am not satisfied to the requisite standard and on the basis of the evidence before me that the offender had the intention of discharging the rifle in the presence of Ms Dean. First, the offender's statements of his belief in the ERISP in this regard were not inherently implausible. Secondly, the intention has to be considered at the point when the offender was intercepted. This was, as I have indicated, only a very short geographical space (and time) before possible entry into Ms Dean's home. However, I find that the offender's state of mind, affected as it was by severe intoxication, was too volatile to admit of confidence as to what he might have done with the firearm, at the point of interception, if he was able to enter the home (and assuming Ms Dean was present). Discharging the gun was one possibility (but not with the intention of killing Ms Dean). Brandishing it was another. I do not regard the possibility of an actual discharge of the gun as being so obviously preferable as the possibility that he intended merely to brandish the gun to make the finding as to preclude the latter hypothesis.
15. In reaching this view, I accept that lies were told in the ERISP. However, that does not lead to rejection of all of the content of the interview and, in particular, the particular statements (the offender's subjective state of mind about the capacity of the rifle to discharge without the magazine) were not subsequently falsified. As I have said, they were not inherently implausible. Moreover, when he had earlier discharged the firearm, the offender had done so with the magazine attached. He had not discharged it without the magazine attached. When travelling to the victim's property, the magazine could not have been attached because it had been left behind at the offender's property. There was no evidence of prior discharge of the rifle without the magazine.
16. I therefore find that the means by which the offender intended to intimidate Ms Dean was likely by brandishing, or waving the rifle, supplemented by the choice of language consistent with that conduct, which may be expected to be menacing and threatening in tone and content.
17. Having regard to my resolution of these disputed factual questions, I return to consider the objective seriousness of the remaining indictable offences. In doing so, when considering objective seriousness, I am reminded by the offender's Counsel and I accept, that it is important not to allow double counting; having regard both to the multiplicity of the offences (for example, the offence occurring in the context of a history of domestic violence) and the possible presence of aggravating factors.
18. As to offence 7, I acknowledge that, consistently with the jury's finding, the intent was to use the firearm only to 'scare' Ms Dean - plainly of a lesser order than the intent to kill her with it. I also acknowledge that s 33B(1) of the Crimes Act 1900 (NSW) also sets out a range of offences and that possession of an offensive weapon is less serious than 'use', 'attempt to use' or 'threat to use'; which were variants that could have been but were not relied upon. Set against this, the offence contains the element of possessing the rifle with the intent to commit an indictable offence (intimidation, in a domestic violence context) which is more serious than the other species of specific intent contained within the statutory provision.
19. The seriousness of the offending conduct is not materially lessened even if (which was not the case here) the firearm was incapable of being discharged: R v Mostyn (2004) 145 A Crim R 304 per Howie J at [187].
20. But a relevant consideration in assessing objective seriousness is the consequences of the offence; especially the harm caused by it. In this regard, I note the victim impact statement of Ms Dean (13 December 2016) that was placed before the Court in the earlier proceeding. That statement bespoke a belief in the loss of freedom of security and a profound sense of violation. These statements were consistent with my observation of Ms Dean; both when she gave evidence at the trial and her demeanour during the sentencing hearing. She patently remains traumatized by the events. I assess the objective seriousness of the offending conduct for this offence at the mid-range.

Indictable Offence 4

1. I have found that the firearm was loaded (a fact which was admitted), but was also capable of being discharged.
2. It was submitted, and I accept, that possession of a loaded firearm in a public place is less serious than actually firing it, or carrying it in a manner likely to endanger the safety (or property) of others. I do not consider that the objective seriousness can be amplified by any finding involving a prediction as to whether there was a real risk of harm as a result of a discharge; given the Crown's reliance upon s 93G(1)(b) of the Crimes Act 1900 (NSW); in preference to s 93G(1)(c).
3. I accept the submission that the rifle was not fully loaded. I regard this offence as being at the low end of the range.

Indictable Offence 6

1. This offending involved storing a single unsecured rifle in the back seat of the vehicle. The conduct in this respect was an isolated instance of offending and I would regard it as falling at the low end of the spectrum.

Culpability

1. This topic is conceptually distinct from the question of the objective seriousness of the offending; focussing, as it does, on this particular offender's state of mind in this particular offender's circumstances. It is unnecessary to evaluate this matter against each individual offence: the offender's culpability is pertinent overall to the application of sentencing principles including specific deterrence, accountability, rehabilitation, retribution and adequate punishment.
2. Finding, as I have in relation to the principal offence, that the offender's intention to intimidate was to be realized by brandishing rather than discharging the firearm does not present a free pass to the offender. The finding I have made in this respect takes him at his word that he did not know it could discharge without the magazine. That is to say, he did not appreciate the capacity of the firearm (even if he had in fact tested it with the magazine).
3. I noted earlier the submission of Counsel for the offender that the ballistics expert called by the Crown did not undertake a fire testing without the magazine bolstered the offender's argument as to the reasonableness of his belief that it could not discharge without the magazine. This, in my view, represents an inversion. Taking the offender's case at its highest, he believed that it could not discharge without the magazine. Having put the ammunition in the rifle, in my view, it was incumbent upon him to take steps to assure himself that it could not discharge without the magazine. He did not do so.
4. In my view, and in this respect, it was grossly unreasonable for the offender, at least, in a mental state of rage and self-induced intoxication that the offender was in, to think that he could take a loaded firearm to an intended victim's place with the intention of waving it around. For one thing, given his state of mind, there was the possibility that he might pull the trigger in the erroneous belief that the firearm would not discharge. I agree with the submission of the Crown that without taking any steps to ensure that it could not discharge without the magazine, to take what was a loaded firearm and to use it to scare another person, all the while under the influence of self-induced intoxication was highly culpable.

Aggravating Factors

1. I am conscious of the need to avoid double counting and the injunction against treating matters which constitute the essential elements of the offences as aggravating the relevant offence. Thus, for example, with the principal offence, offence 7, the circumstance that the offence occurred in the context of domestic or personal violence is already factored into the element of the offending.
2. Before me, the Crown relied upon the following circumstances in aggravation: 1. the offending involved a grave risk of death to another; 2. the offending involved intoxication; and 3. premeditation.
3. The Crown also relies upon the offender's prior criminal history. This circumstance is often considered in connection with the offender's subjective case, however, the Prosecution relies upon the statutory consideration in s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in emphasising the offender's having been sentenced or convicted for serious personal violence offences. In doing so, the Crown relied upon Wood v R [2019] NSWCCA 309 at [81] for the proposition that prior criminal offences were not just a matter disentitling an offender from leniency but may incline the sentencing court to accord greater weight to the principles of deterrence and protection of society. This consideration is of even greater significance when the statutory provision itself expressly refers to prior offences involving personal violence. Wood was a case similar to the facts in this proceeding, involving prior domestic violence.
4. I accept that this particular aggravating factor has been made out: the offender was convicted on 13 July 2011 of the offence of intimidation. Other offences in his history have involved assault, contravening Apprehended Domestic Violence Order, destroying or damaging property as well as resisting officers in the execution of their duty. The offender appears before this Court as a repeat offender of serious offences involving violence.
5. In the events that occurred, through Ms Dean's fortuitous presence of mind, she was able to procure police assistance to protect her and her children. They were not at the residence at the time that the offender's vehicle was intercepted; only a short distance from Ms Dean's residence. I infer that Ms Dean and her children would have been safely in the care of the police until the offender was apprehended. It was not suggested that anyone else was in grave risk of death. I apprehend that the consideration of s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (NSW) imports an entirely objective circumstance; whatever the offender's state of mind. Put another way, the consideration is not enlivened simply because offending conduct might have generated a risk of death (in the future). It arises because the conduct did, in fact, generate such risk. In the circumstances, as a factual matter, I do not accept that the offending conduct "involved" a grave risk of death as an aggravating factor.
6. The offender accepts that, to the extent he was intoxicated, this was the variety of self-induced intoxication. It therefore cannot be taken into account as a mitigating factor [10] . That is not to say that it cannot be taken into account as an aggravating factor.
7. Counsel for the offender submitted that intoxication was relevant in several ways. First, it was relevant to the offender's state of mind; and, moreover, might be shown to have affected his capacity to make reasoned or ordered judgments and his general level of self-control. It also might indicate a lack of planning and heighten the possibility of an opportunistic act [11] .
8. I reject these arguments. In my view, to accept them would be virtually inconsistent with the jury's verdict. Plainly, the offender raised for the jury's consideration whether he could have had the specific intent to intimidate Ms Dean by reason of his level of intoxication. By its verdict, the jury indicated that he had. In the sentencing material before the Court, the offender retrospectively attributed his conduct generally at this time to his alcoholism, but it was not seriously suggested that alcoholism caused him to act in the way that he did to such degree that it might lessen the gravity of his conduct. His intoxication did not impair his ability to direct a friend to take him to the property to retrieve a rifle; nor did it impair his ability to discharge the rifle at his own property. Intoxication may have induced a level of 'Dutch courage' to fortify the offender in his offending conduct but that is not a circumstance in mitigation.
9. On the issue of premeditation, I accept that the statutory consideration of 'planning' [12] is not present. But in connection with the most serious of the offences, I find that there was a not insubstantial degree of premeditation. This featured the involvement of the offender's friends in driving him to a property to collect the rifle (and accessories) and the death threats to Ms Dean at a point proximate to when his vehicle was intercepted. I acknowledge that these are matters which to some extent make up other offences, but they also cast the most serious of the offences, offence 7, in its proper contextual light. For the same reason, I reject the offender's submission that the conduct was spontaneous or opportunistic.

The Offender's Subjective Case

1. There is some overlap in the considerations relevant to the state offences and the federal offence. I will indicate where the factor is expressly relied upon by the offender in respect to the federal offence in addition to where it is relied upon for the state offences.

Age and Background

1. The offender was aged 35 at the date of the offences. He was not a young man at the time of the subject offending.
2. In the pre-sentencing report placed before the Court in 2017, it was indicated that the offender had had a stable upbringing; before he left home to live independently at the age of 15. He had a serious relationship when he was aged 20 which lasted for six years; during the course of which his then partner had two children. He married Ms Dean in 2007.
3. The offender left school at the young age of 14. In the course of his employment he obtained a license to drive heavy trucks as well as qualifications for asbestos removal, bobcat and excavator operation.
4. In the six months prior to the offending conduct he was employed as an excavator operator and truck driver.

Mental Health Condition

1. In his 2017 pre-sentence report, the offender reported that he commenced consuming alcohol at the age of 14 and became a daily drinker by the age of 25. After a period where he ceased drinking, following the birth of his first daughter in 2005, he relapsed, due to stress, and consumed between 12 and 24 drinks daily. This was in spite of his attendance at a drug and alcohol counselling service at Fairfield Hospital.
2. In the 2020 sentencing assessment report, the counsellor reports the offender's belief that his criminal history was attributable to his alcoholism, although he accepted that alcohol could not be blamed for his conduct.

Prior Criminal History

1. This factor is also relied upon in relation to the federal offence [13] .
2. I referred to this when considering aggravating factors.

Character

1. This factor is also relied upon in relation to the federal offence [14] .
2. I was referred to a reference from Mr Giuseppe Barca [15] , who runs a scrap metal shop and who employed the offender over a four-month period up to the time of his offending conduct. The gist of the reference was Mr Barca's "surprise" to learn of that offending conduct; although the letter also spoke to the offender's positive future employment prospects. Given the brevity of Mr Barca's association with the offender and omission to refer to the offender's history of physical and domestic violence, I give little weight to Mr Barca's assessment that the offending conduct was out of character.

Guilty Pleas

1. This factor is also relied upon in relation to the federal offence [16] .
2. In his submissions, Counsel for the offender placed before the Court a schedule of proposed discounts that should be given to the guilty pleas entered by the offender.
3. The table is as below: Offence Description of Offence Proposed Range of Discount Indictable Offence 1 Fire firearm near public place 10-15% Indictable Offence 2 Use carriage service to threaten to kill 10-15% Indictable Offence 3 Handle or use firearm while under the influence of alcohol 10-15% Indictable Offence 4 Possess loaded firearm in public place 25% Indictable Offence 5 Possess unregistered firearm 25% Indictable Offence 6 Not keep firearm safely 25% Indictable Offence 7 Possess offensive weapon with intent to commit the indictable offence of intimidation 25% Sequence 1 Intimidation 25% Sequence 3 Contravene Apprehended Domestic Violence Order 25% Sequence 9 Possess ammunition without authority 25% Sequence 11 Drive vehicle under influence of alcohol 10-15% Sequence 12 Resist officer in execution of duty 10-15%

1. Subject to a minor qualification, the Crown did not dispute these suggested ranges.
2. The exception was the proposed range of discount for the most serious of the offences, indictable offence 7.
3. On this, the Crown's approach was nuanced. The Crown accepted that some discount was warranted but baulked at the suggestion that it should be at the level of 25%. The Crown did not dispute that the charge was effectively laid in August 2016 and did not dispute that the offender had offered to plead guilty to it in September 2016. Nevertheless, the Crown noted the circumstance that notwithstanding his plea of guilty to the charge, the offender persisted with an argument which, if accepted, would have acquitted him; namely that for the offence of specific intent, the Crown had not proved beyond reasonable doubt that the offender intended to intimidate. At trial, the offender wanted to enjoy the benefit of a discount for the plea whilst preserving the opportunity of securing an acquittal. That is, he wanted to have his cake and eat it as well.
4. Counsel for the offender submitted that the only reason that there was a trial was because the Crown did not act on the plea offered to it in September 2016, but persisted with the primary charge (the requisite intention being to kill). In reply to the Crown's submission, Counsel submitted that the offender's reliance upon the subject of intoxication did not occasion any additional evidence. It related also to the Crown's primary charge as well.
5. In my view, the guilty plea was offered at the earliest practicable opportunity. This is, the primary consideration in determining the discount and is at least a starting point. The terms of that offer were not before the Court. I do not know, for example, whether any conditions were attached. Contrary to the offender's submission, however, the circumstance that a plea was made to an alternative count at the earliest practicable opportunity is not conclusive.
6. In terms of its utilitarian value, there are circumstances where the value of an early plea is eroded because of a dispute as to facts which are ultimately not determined in favour of the offender [17] . This, in my view was such a case. It was not part of the Crown case to establish whether or not the offender was intoxicated, on either the primary or alternative counts at the trial. But as indicated both at the trial, and in this sentencing proceeding, intoxication could be a factor which, if proven, could benefit the offender, whether in terms of whether the offence (primary or alternative) was committed or, even if it was, whether the existence of the factor might, in certain ways, result in greater leniency on sentencing (notwithstanding the limitation in s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). At trial, virtually all of the Crown's witnesses were cross-examined for their observations and opinions as the offender's state of intoxication. As is clear in these remarks, the circumstances concerning the offender's intoxication have in no way assisted him. It was he who has relied upon them.
7. Accordingly, I will allow a discount of 20% in relation to this particular plea.
8. Otherwise, with reference to the above table, I adopt the discounts and, where there is a proposed range, adopt the higher percentage of the discounts proposed by the offender.

Remorse and Contrition

1. This factor is also relied upon for the federal offence [18] .
2. The offender did not directly give evidence at the sentencing proceeding about his remorse or acceptance of responsibility for his conduct.
3. He relied upon a pre-sentence report dated 18 May 2017 [19] and a sentencing assessment report dated 4 February 2020 [20] . In the former report, it is said that the offender accepted full responsibility for the offending behaviour, acknowledged the seriousness of his offending behaviour and expressed regrets. I find it difficult to reconcile his full acceptance of responsibility for his offending behaviour in this earlier report (which, in fairness, dealt with a range of offences, including an earlier iteration of offence 7 later found by the Court of Criminal Appeal to be defective for want of particularity) with his later defence that he could not have committed the firearms offence since, as a result of his intoxication, he did not have the intention to commit an indictable offence (be it murder or intimidation).
4. The latter report, prepared specifically in advance of this sentencing hearing, recorded that the relevant corrections officer had perused the 2017 pre-sentence report. A limitation of the report, and I say this without criticism of the relevant officer, is that its context was essentially directed to offence 7. Acknowledging this, the report recorded the offender's acceptance that he wanted to scare Ms Dean, and that, viewed retrospectively, his conduct made him 'feel sick'.
5. The offender's guilty pleas are, themselves, some evidence of remorse; although I am mindful that to make any additional discount for remorse on account of the plea would likely result in undue leniency.
6. The Crown accepted that during the course of the initial trial, the offender apologised to Ms Dean, although the form that this apology took was not made known to me.
7. Remorse is a matter of degree. I accept at least a degree of remorse or contrition has been established notwithstanding my disquiet that the offender has not availed himself of the opportunity to directly convey it to the Court but has essentially relied upon hearsay accounts from correctional officers. Further, in view of the offender's record, involving domestic violence against different partners, I have some scepticism as to the sincerity of the expressions of contrition.
8. There is no occasion for any additional discount for remorse beyond that which the offender receives through his guilty plea; although my finding of contrition is relevant to mitigating, in a small degree, the principles of specific deterrence and elevating, again to a small degree, the principle of rehabilitation.

Rehabilitation Prospects

1. The offender also placed before the Court certain certificates of acknowledgement by his correctional centre signifying his progress in dealing with addictions, his 'polite' participation (presumably in the context of group activity) as well as his attendance in drug program sessions during the first half of 2019. To his credit, he applied himself to TAFE study in engineering subjects throughout 2019.
2. The offender's 2020 sentencing assessment report records that, upon release, the offender could reside with a childhood friend who could also offer employment to him as a forklift driver. He is also in contact with his eldest daughter. Beyond this information, there was little else to indicate the extent of his community ties.
3. I have referred to the 2016 work reference from Mr Barca which alludes to the offender's good work ethic; although the period of employment covered by the reference was brief. His prospects of rehabilitation are reasonable.

Prospects of Re-offending

1. In the 2017 pre-sentence report, it is recorded that in 2012, the offender had completed a domestic abuse program. He had disclosed to the community corrections officer that his previous relationships were 'almost all marred by domestic violence'. In the same report, the corrections officer assessed him as a 'medium to low' risk of re-offending.
2. The 2020 sentencing assessment report (which, to reiterate, noted that the earlier report had been perused) quantified the risk of re-offending at a higher level, being a 'medium' risk.
3. Much practically depends upon the offender's capacity to manage his problems with alcohol and his general anger management in personal relationships. He has not consumed alcohol since entering custody in July 2015. I noted earlier in these remarks that he had earlier received the benefit of drug and alcohol counselling which did not prevent his relapse into heavy drinking. As I noted a short time ago, his earlier attendance at a domestic abuse program did not prevent his offending conduct in this proceeding. His prospects for not re-offending are guarded.

Pre-Sentence Custody

1. It was not disputed that the commencement date of any sentence of imprisonment should be backdated to 12 July 2015.

State Offences

1. I propose to impose an aggregate sentence to deal with the state offences. I shall deal separately with the Commonwealth offence.

General Sentencing Principles

1. I have taken into account the general sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, in connection with indictable offence 2, the considerations in s 16A of the Crimes Act 1914 (Cth).
2. The principles of general deterrence, protection of the community, denunciation and the importance of making the offender accountable for his conduct must be given primary application ahead of more subjective considerations applicable to this offender. In this case, subjective considerations do not assist the offender to any material degree: the circumstance of his previous violent offending not only bears upon his prospects of rehabilitation but also elevates the significance of personal deterrence. These principles are all applicable to the federal offence as well. In particular, as noted recently more than once, offences that occur in a context of domestic violence accentuate the requirement for just punishment to reflect the need for the law to vindicate human dignity [21] .
3. There was no serious dispute, and I so find, that for serious offending of this kind, in relation to the state offences, that the s 5 threshold is passed and that no punishment other than imprisonment is appropriate. I also find that the threshold is passed in relation to the federal offence [22] .
4. In relation to the federal offence, Counsel for the offender referred me to certain JIRS sentencing statistics which indicated that, at least in the Local Court, a variety of sentencing options have been imposed in relation to the federal offence. The statistics in relation to sentencing options for this offence when tried on indictment were meagre. Generally, I found the statistics to be of no meaningful significance.
5. I am cognizant of the importance of totality in framing the aggregate sentence. There is some scope for concurrency, particularly in relation to the firearms offences, but there remains a significant requirement for accumulation; given the range of offending conduct; embracing violation of apprehended violence orders, intimidation (actual as well as intended), death threats and, most seriously, the intended use of a semi-automatic rifle to scare an innocent victim and traumatise her and her children. Essentially, the pattern of criminal conduct commenced with intimidation; escalated to death threats and culminated in a plan to use a rifle (for which the offender was not licensed or authorised to use) to intimidate the offender's estranged wife. This occurred in the context of a relationship characterised by domestic violence.
6. The aggregate sentence of imprisonment (for the state offences) will be backdated to commence on 12 July 2015.

The Previous Sentencing Proceeding

1. In the previous sentencing remarks on 13 June 2017, an aggregate sentence of 10 years imprisonment with a non-parole period of 5 years and 6 months was imposed for the six state offences and the s 166 offences. A sentence of 6 years' imprisonment (with a non-parole period) was imposed in relation to the federal offence.
2. The sentencing remarks of Sides DCJ were placed before me. It was common ground that the sentences (including the indicative sentences) mark the outer limits of the sentences I should impose on the offender in this proceeding. There was no suggestion that I should feel impeded in having regard to the reasoning in those earlier remarks. To the contrary, the Crown submitted that I should be closely guided by them. Counsel for the offender went further and submitted that in certain respects, I should distinguish the earlier remarks on the basis that some of them were premised upon the view, now rejected, that the offender's intent in possessing the firearm was to murder Ms Dean. This, it was said, affected the indicative sentences in respect to some of the indictable offences as well as the aggregate sentence which was imposed. I note that not all of the material that was placed before Sides DCJ was placed before me; including a psychologist's report prepared on the offender's behalf that was apparently before his Honour.
3. There are two complications in imposing the sentences for imprisonment. First, is the backdating aspect to which I have referred. Secondly and more significantly, is the circumstance that there are multiple state offences and a single federal offence. Section 19(3) of the Crimes Act 1914 (Cth) presents some complexity in its requirement to stipulate when the Commonwealth offence is to start. I propose to follow the course adopted in TW (No.2) [2014] ACTA 37 which will see the term for imprisonment for the federal offence commence following the expiry of the non-parole period for the aggregate sentence for the state offences. Because of the length of period of imprisonment already served, and the principle of totality, there is a need to adjust the non-parole periods for both state and federal sentences: no single combined non-parole period may be set for the state and federal offences [23] .

Special Circumstances

1. The Crown submitted that no special circumstances applied. I disagree. In my view they arise in the circumstances where the offender's prospects of rehabilitation are at least reasonable and it is desirable to extend the period on parole to promote that rehabilitation.
2. Mr Dean, please stand.
3. You are convicted of offences 1 to 7 (inclusive) and sequences 1, 3, 9, 11 and 12.
4. In connection with sequence 9, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court will proceed to impose no sentence.
5. In relation to the balance of the sentences, they all take into account the discounts for the guilty pleas referred to earlier in these remarks.
6. The indicative sentences for the state offences are: Offence 1: 3 years' imprisonment Offence 3: 3 years' imprisonment Offence 4: 2 years' imprisonment Offence 5: 1 year, 6 months' imprisonment Offence 6: 1 year's imprisonment Offence 7: 5 years' imprisonment Sequence 1: 1 year, 3 months' imprisonment Sequence 3: 9 months' imprisonment Sequence 11: 4 months' imprisonment. In connection with this sequence, you are also disqualified from holding or obtaining a licence for 12 months. Sequence 12: 4 months' imprisonment
7. In relation to the state offences, being offences 1, 3 and 4-7 (incl.) and the related offences, I sentence you to an aggregate term of imprisonment of 7 years, commencing on 12 July 2015 and ending on 11 July 2022. There is a non-parole period of 4 years, 7 months and 2 days ending on 13 February 2020.
8. For offence 2, you are sentenced to a period of imprisonment of 3 years commencing on 14 February 2020 and ending on 13 February 2023. There is a non-parole period of 1 year, 11 months and 30 days ending on 12 February 2022.
9. You should understand that release to parole on 12 February 2022 is not automatic. The parole authority will hold a hearing prior to that date at which time it will decide whether to release you to parole at all. If it decides to grant you parole, it will determine the date of your release and the conditions of your parole. One such condition would be that you must not commit an offence during the period of parole. There will likely be many other conditions. If during the time you are on parole you breach any condition, the parole authority will revoke your parole and you have to go back to prison to serve the balance of the sentence.

Endnotes

1. Dean v R [2019] NSWCCA 27. The background is especially set out at [6]-[10]. The appeal judgment was from the sentencing remarks of Judge Sides on 13 June 2017.
2. This was the maximum penalty at the time of the offence. Subsequently, the maximum penalty has increased to 14 years' imprisonment.
3. It was common ground that, practically, the charge was laid in August 2016.
4. Exhibit A and H at the trial.
5. Exhibit 2 in the sentencing hearing.
6. R v Maltese [2004] NSWCCA 408 at [35].
7. R v Mallia [2007] NSWDC 324 and R v Betts [2017] NSWDC 124.
8. Cheung v The Queen (2001) 209 CLR 1 at [14]; The Queen v Olbrich (1999) 199 CLR 270 at [27].
9. Trial transcript reference pp 93-94.
10. Section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
11. Greenwood v Regina [2014] NSWCCA 64 per Hoeben CJ at CL at [34].
12. Section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
13. Crimes Act 1914 (Cth), s 16A(2)(m).
14. Ibid.
15. Exhibit 5 at the sentencing hearing.
16. Crimes Act 1914 (Cth), s 16A(2)(g).
17. Section 25F(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
18. Crimes Act 1914 (Cth), s 16A(2)(f).
19. Exhibit 4 in the sentencing proceeding.
20. Exhibit B in the sentencing proceeding.
21. Munda v Western Australia (2013) 249 CLR 600 at [54]-[55].
22. Crimes Act 1914 (Cth), s 17A(1).
23. Crimes Act 1914 (Cth), s 19AJ. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2020