R v GRANT

NO: 70042 OF 2000 Friday, 22 June 2001 HULME J R v Robert John GRANT REMARKS ON SENTENCE

HIS HONOUR: 1 Shortly after midnight on 27 November 1999, Ross Shersingh, Daniel Bradford and Anthony Leeder were standing near the tray of a motor vehicle in the car park of the Lightning Ridge hotel. Mr Shersingh was struck in the chest by a .22 calibre bullet and died. Shortly after Mr Shersingh was shot, another bullet was fired at Mr Bradford. 2 The prisoner, who lived in a caravan park adjacent to the car park, was identified by Messrs Bradford and Leeder, both of whom knew him, as the author of the first shot. He had walked up to the vicinity of the motor vehicle, raised a rifle to about his hip and just fired. He seems to have turned away but returned and then chased Mr Bradford around the vehicle and, as the jury inferred, fired again. 3 The police found the rifle from which the fatal shot was fired in his caravan when they searched it some hours later and he was charged. There was other evidence which, while not conclusive on its own, pointed strongly to the prisoner being the offender. 4 The prisoner gave a story of having lent the weapon to an acquaintance earlier that night and of having found it later, left in the annex to his caravan. Not surprisingly, the jury which tried him was unimpressed with this account and convicted him of both the murder of Mr Shersingh and of shooting at Mr Bradford with intent to murder, offences which carry, respectively, maximum penalties of imprisonment for life and for 25 years. 5 There is no evidence which demonstrates an understandable and rational motive for the prisoner's actions. He may have had a chip on his shoulder as a result of employment at the hotel being terminated some months earlier. He may have been cranky because he had been refused service of alcohol earlier in the evening at the Lightning Ridge Bowling Club because of his state of intoxication. However, there is no satisfactory evidence of lingering or, in the case of the second of these events, any significant resentment by the prisoner in consequence of these decisions. Nor is there anything to suggest the prisoner could have thought the victims had any association with the decisions. 6 On the other hand, there was evidence from one witness that at the time of the shooting he heard, from the same direction that he heard a shot, a voice call out, "You big-noting opal mining cunts" and from another that, in the week or so before the shooting, the prisoner had been opal mining on someone else's holding and that a deal of earth had been shifted for no return. I accept the evidence to which I have referred in this and the immediately preceding paragraph and draw the inference that the author of the remark was the prisoner. I note that if I make any findings adverse to the prisoner, the standard of proof required is beyond reasonable doubt. 7 It is also reasonable to infer from other evidence in the case that, to the knowledge of locals, including the prisoner, persons in the car park of the hotel at the time of the shooting would have been likely to include opal miners. In fact, the vehicle to which I have referred belonged to an opal miner, Mr Bradford was an opal miner, and Mr Leeder would seem to have done some mining. If it were necessary to find a motive for the prisoner's actions, I think the most probable is some resentment on the night of his lot in life, particularly by comparison with the situation of others. He may also have been irritated by noise in the area of the car park, about which there is some evidence. However, as I have indicated, none of these matters provide a rational explanation for his actions. 8 It is not unlikely that the state of intoxication which led to the prisoner being refused service at the Bowling Club was a disinhibiting factor in what occurred. In light of the prisoner's past, I do not regard his intoxication as an aggravating feature. However, that past includes what would seem to have been problems with alcohol, possibly leading to a tendency to be aggressive. 9 He had been convicted of one offence of driving with a mid-range PCA. Intoxication and an aggressive attitude which followed would seem to have led to his dismissal as an employee of the hotel. It may well be that an assault he committed in 1994 was committed under the influence of it. 10 These matters, together with the history of alcohol use referred to in psychiatric and psychologist's reports which were tendered lead me to the view that I should not regard his ingestion of alcohol as a mitigating factor but because there is no history remotely approaching the nature or scale of the offences for which he must be sentenced, I am not disposed to regard it as an aggravating feature either. I should perhaps add that Mr Wilson, appearing for the prisoner, I think accepted that the history justified this approach. 11 There is no basis for concluding other than that the offences were unpremeditated, except for a few moments. 12 One issue I must address is the question of the mental ingredient which accompanied the shooting of Mr Shersingh. Ultimately, the conclusion to which I have arrived is that I am not satisfied the prisoner had an intent to kill Mr Shersingh. His clear intent to shoot Mr Shersingh does not persuade me of an intent to kill and the fact that Mr Shersingh was struck in the chest does not argue unequivocally in either direction. The evidence that the accused turned away before addressing Mr Bradford leads me to the view that I should not infer from the prisoner's intent at the time of the later offence that he had a similar intent at the time of the former, particularly given his obvious intoxication and the lack of rational motive. As between an intent to do grievous bodily harm and reckless indifference, I am unable to decide. In the circumstances of this case, I do not think it makes any difference to the prisoner's criminality but he will be sentenced on the basis of these rather than any intent to kill Mr Shersingh. 13 The firearms which were found on the occasion of the police search were unregistered and the prisoner had no licence in respect of them. However, given his location in the country and the evidence of his acquisition, I see nothing particularly heinous in these facts or his possession of the weapons. Of course, it is reasonable to infer that without ready access to weapons, the offences of which the prisoner has been convicted would not have occurred. But I am not disposed to regard the matters referred to in this paragraph as operating adversely to him in these proceedings. 14 The prisoner, who was born in 1956, has a minor criminal record but, except to the extent to which his alcoholism is relevant, I regard his record as of no significance for present purposes. There is hearsay evidence in reports which were tendered of the prisoner having had a reasonable upbringing, albeit marred by the death of his father and one of his siblings. Although the prisoner is an Aboriginal, his history does not call for the sort of considerations adverted to in Fernando. Those reports suggest also that he has had a good work history and although I have some scepticism of what is said, given the form of the evidence, I am prepared to proceed on the basis of it. 15 Clearly the prisoner did have a position of some responsibility at the Lightning Ridge Hotel for a time and there have been references in the form of affidavits provided. Otherwise, there are no subjective features which require particular attention in these remarks. 16 Other matters to be taken into account, particularly in any comparison of the prisoner's situation with those of other offenders sentenced for similar offences, are that the prisoner did not plead guilty, though he is not to be punished for that, and he has shown no contrition. Apart from anything else, this last proposition is demonstrated by an attempt to have evidence changed or not given, though again he does not stand for sentence for that. Furthermore, he does not have the benefit of youth. 17 The prisoner has been in custody since 28 November 1999, for virtually the whole time on protection in one form or another. There are few details of this, certainly none which enable me to conclude that he will spend the whole of his time in prison in that situation. However, in accordance with the accepted view that incarceration in protective custody involves restrictions and disadvantages to which the general prison population is not subject, on this account his sentence will be less than would otherwise have been the case. 18 In the circumstances which I have outlined, the features which must loom largest in any determination of the proper sentence are the objective seriousness of the prisoner's offences and, of the principal factors to be taken into account in sentencing, general deterrence and retribution. There is no evidence of any particular need for personal deterrence, nor reason to believe that rehabilitation has any greater than usual significance. The lack of any rational motive makes one wonder whether protection of the community might merit particular weight, albeit within the bounds laid down in Veen v R (No 2) (1988) 164 CLR 465 but, in light of the prisoner's past, I do not propose to go down that path. 19 An aggravating factor is, of course, that although both offences were committed on one occasion of criminality, not content with the shooting of Mr Shersingh, the prisoner went on in a deliberate attempt to shoot Mr Bradford. 20 The maximum penalty of 25 years imprisonment indicates the seriousness with which Parliament regards such an offence and even though Mr Bradford suffered no physical damage, the offence of attempting to take another's life merits substantial punishment in its own right. Of course, regard must be had to the principle of totality. 21 Recently, in R v Hearne [2001] NSWCCA 37, I was party to a decision wherein a number of authorities bearing on the appropriate sentence in this case were reviewed. In these circumstances, it is unnecessary for any further review here. Nor is it necessary for me to indulge in a detailed comparison between that case and this one. It is sufficient to say that there are differences, some favourable and some unfavourable to the prisoner. 22 In these circumstances, the orders I make are as follows: In respect of the offence of shooting at Mr Bradford with intent to murder him, the prisoner is sentenced to imprisonment for a fixed period of five years commencing on 28 November 1999. In respect of the offence of murdering Mr Shersingh, the prisoner is sentenced to imprisonment for a period of 18 years, including a non-parole period of 13 years, both periods to commence on 28 November 2001. In totality, the prisoner is sentenced to imprisonment for 20 years with a non-parole period of 15 years. I should perhaps add that even had I determined on lower individual sentences than I have, I would not have reduced the totals below those indicated in this paragraph. In respect of the offence of shooting with intent to murder, I decline to set a non-parole period because of the sentence imposed in respect of the murder offence. In the case of the sentence for that offence, I have set a non-parole period less than three-quarters of the term of that sentence because of the sentence in respect of shooting with intent. The fact and terms of the two sentences constitute special circumstances. oOo

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