In February 2019 Matthew Kaplantzi was sentenced to Community Correction Orders for offences pursuant to the Crimes (Domestic and Personal Violence) Act 2007. They relate to two victims with whom he had previously been in relationships with. He was placed under supervision and it appears while that supervision continued made some progress. At the time he was living with his father in Nowra, helping in his father's dog breeding business and avoiding his associates in the Wollongong area. When the supervision finished he left his father's home and began to live in the Wollongong area. He started hanging out with people who, like himself, used and abused illicit drugs. He was not working and he was leading a relatively aimless existence.
On 15 November 2019 Kaplantzi drove his BMW sedan to an address in Windang, in southern Wollongong where a 'transaction' took place. The offender then went home and obtained what is described as a 'BB' or ball bearing gun and returned to the premises. He drove slowly past the residence with the window of his vehicle down. He took the gun and held it through the open window. At that time three young men were outside the premises near a vehicle belonging to one of the residents. The offender fired more than ten shots from the gun. One man was struck in the forearm. The pellet caused a small puncture wound. Another man was struck to the side of his chest causing a blood blister. There are photographs before me. The rear window of the vehicle was shattered and there were other cracks and pellet holes in the car and house. The offender drove away.
Not surprisingly a number of people called Triple-0. Police were soon at the scene and soon after they spoke to and then arrested Kaplantzi.
The transcript between police and the offender from the body worn audio visual device worn by officers is before me as an exhibit. He gave an immediate explanation for his actions. The offender in evidence today adhered to that version. It is from his perspective consistent with the facts. He told police and he tells me that he did a friend a favour by delivering a small packet of drugs to the house in Windang. He said the recipient rather than pay for it as expected, brandishing a weapon and took the packet from him by force. He had the BB gun which he'd used as a toy to fire at targets. He armed himself with it, returned to the premises and committed the offences.
Whatever the motive, the offence involved some premeditation. Although he tells me, as he told the police, he did not intend that anyone be hurt, his reckless use of a firearm caused injury and property damage.
When the matter was before the Local Court he pleaded guilty and accepted his guilt in relation to two offences: fire a firearm at a dwelling house with reckless disregard for the safety of persons; s 93G(a)(i) of the Crimes Act 1900; maximum penalty of 14 years imprisonment, standard non‑parole period of five years. And, Use of an authorised pistol; s 71 of the Firearms Act 1996; maximum penalty of 14 years imprisonment, standard non‑parole period of four years.
A standard non‑parole period relates to an offence that falls, taking into account only objective factors, in the middle of the range of seriousness. In relation to both matters there are also offences on Form 1s, for which he has admitted responsibility. He asks they be taken into account. While I do not sentence for the Form 1 matters, a Form 1 offence can in appropriate circumstances lead to an increase in the otherwise appropriate sentence. Relevant principles were set out in the guideline judgment from 2002: Attorney General's Application No. 1; (2002) 56 NSWLR 146.
With possible exception of the possess unregistered firearm offence, the other two matters would not of themselves require custodial sentences. The possess unregistered firearm relates to the BB gun, which in the circumstances could never have been registered. While serious in themselves they would not lead to any significant increase in the otherwise appropriate sentences for the matters before me. It has to be understood, and I have said this too often in the last couple of years, that so called "toys" whether they fire a ball bearing, a lead pellet or a gel capsule, are all in New South Wales regarded as firearms. They are not toys. The pellets used still make it a projectile weapon. They are not allowed to be held or possessed by anyone in the community without a firearms licence. The possession of any firearm is a privilege, which is strictly enforced. And, with great respect to Mr Kaplantzi, he was not a person who was trained or had any idea at the time of the need for care in the operation and possession of a firearm.
Sentences must be proportionate to the harm caused and the objective seriousness of the offence. The maximum penalties indicate how serious the Courts and the community are intended to view such offences. The maximum penalty is one guide to the exercise of my sentencing discretion. Any offence but particularly those with the standard non‑parole period require the Court to carefully undertake an assessment of objective seriousness. Content has to be given to the standard non‑parole period. I have a photograph of the firearm.
Here, it would not have been apparent to those targeted that it was a BB gun. Harm was caused to people and property. The firing of the shots was indiscriminate. The offences took place in a public street. The firearm was possessed and used in an unsafe, unsecured and unregulated environment.
Possession of a firearm in any form with ammunition and the use of the firearm in connection with any other related offences, particularly drug offences, can escalate the potential for harm. Drug use often causes those affected to act irrationally. Where potentially drug affected people have access to a firearm, it increases the potential for serious harm. The injuries caused here were not particularly serious but there were injuries. There was a degree of damage to property. The victims did not cooperate with police but that does not mitigate the offence: s 30E Crimes (Sentencing Procedure) Act 1999.
What was done was a fundamentally anti-social act committed without any regard for the safety of others and without any regard for the peace and wellbeing of our community. It demonstrates why, very sensibly, our community treats firearm possession and the use of firearms as a privilege restricted to those who can be trusted and satisfy a very stringent registration of public safety requirements.
That said every offence and every offender require individualised treatment. The Court in the exercise of its undoubted discretion takes guidance from a number of sources. I have already referred to maximum penalty and the applicable non‑parole period. I have regard to the decisions of other Courts particularly those designed to give guidance and the purpose of sentencing. They importantly here include the deterrence of this offender and others from committing similar crime and proper recognition to the crime done to individual victims and the community. In that regard I note that one of the reasons we have laws, one of the historical functions of the criminal law, is to properly punish an offender so that victims and their friends and family are discouraged from resorting to self-help. As is clear from the facts here when someone resorts to self-help and uses a firearm the danger to the community escalates. That escalation can lead to harm and in Kaplantzi's case in his spending a significant portion of his already short life behind bars.
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Structure
In this matter I would not regard the Form 1 matters as requiring of themselves custodial sentences. The breach of Community Correction order matters do require custodial sentences. He made a promise to the Court to be of good behaviour; he broke that promise. While that factor also operates to aggravate the sentence I impose I have to be careful not to double count matters in aggravation.
I have to impose an appropriate sentence for each offence and structure the sentence so that the overall sentence is just and appropriate to the totality of the offender's criminal behaviour: Mill v The Queen (1988) 166 CLR 59. Here the two charges seek to encompass the whole of the offender's criminal conduct. It means that more than one offence was properly charged and punishment must be exacted for each. This was made clear in Pearce v The Queen (1998) 194 CLR 610 at [40]
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common…"
The principal offence is the s 93G(a) and I have reduced the sentence for the other Firearms Act matter in accordance with Pearce. Where the offences form part of a single episode of criminality with common factors, it is more likely the sentence for one will reflect the criminality of both. Here, there should be complete concurrence; even though each has a slightly different factual matrix, as explained by Madam Crown and as is reflected in paragraphs 5 and 6 of the agreed facts.
The offender gave evidence. He was very frank. He explained his rationale for committing the offence. He described it as a "silly and stupid mistake" and expressed appropriate remorse. It was more than a silly and stupid mistake; it was a serious crime. I think he now understands that.
He has had a number of difficulties in his life, he has for a period utilised the services of Headspace, a local mental health facility for young people. It is a pity he was not able to continue seeing them. He has support from his family and support from his family in Nowra. He has learnt a harsh lesson that gaol is meant to teach. He now understands that there are right choices and wrong ones and they include friends and associates.
He has a plan but in gaol he has nothing, there is little point to anything that occurs, but he knows he does not want to come back. His plan is to return to the Nowra area, find work and give some meaning to his life. His youth, his immaturity, his need for supervision in the community for as long as practicable require, in fact in this case demand, the finding of special circumstances.
There is a comprehensive and practical Sentence Assessment Report before the Court. It notes his remorse, which I accept, his problems with gambling and alcohol and other drugs. His gaol record is not perfect. When I worked years ago with the Prisoners' Legal Service I had experience of prisoners who make and drink brew. I would not recommend it to anyone. It is clear he needs intervention and help both in custody and on release. All the empirical evidence indicates that those who are supervised on parole are less likely to commit new offences.
He will have a reduction of 25% in the otherwise appropriate sentence. He has been in custody since 15 November 2019. He has been before the Court before. There are matters from the Children's Court before me, they are not admissible: s 15 Children (Criminal Proceedings) Act 1987. I have no regard to them. He is however not entitled to leniency often given first offenders because of his Local Court record.
When sentencing a young man who has psychological and apparent mental health problems courts have to be careful: DPP v De Le Rosa [2010] NSWCCA 194. There are a number of important principles that apply. Although he is now 21, and 20 at the time, he was very young and immature. The law recognises the potential for the cognitive, emotional and or psychological immaturity of young persons to contribute to their breach of the law. It is well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until the person's mid-twenties: see Clarke-Jeffries v R [2019] NSWCCA 56 and the other cases cited there.
Ms Olender, solicitor for the Director of Public Prosecutions, and Mr Galloway have provided written submissions to which they have been spoken. I have taken what they said in account and addressed them in this judgement.
I now have to synthesise all these matters. Drug use and poor choice of associates can provide no excuse for what occurred. Kaplantzi was and is a young, impressionable young man. He was and is drifting but he has not yet settled into criminal habits. I fear, should he spend too much longer in gaol, he will learn more from his criminal associates in gaol than would be healthy for himself or the community.
All the evidence that I have read, indicates that for young, impressionable offenders gaol can be a criminal learning experience and lead to high rates of recidivism rather than a structured program in the community: Victorian Sentencing Advisory Council, Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011
I have to have regard to the various and sometimes contradictory purposes of sentencing. The New South Wales Court of Criminal Appeal has said, very strongly that anyone who engages in violence in public has to receive a sentence that has a significant degree of general deterrence and denunciation: R v Loveridge [2014] NSWCCA 120. But there is no one correct sentence. Protection of the community requires that this offender be removed from the community but the sooner he is returned to it and engages in a program of rehabilitation the greater the chances are that he will not return to custody. The sentence should not make him worse nor should it encourage further offending. The public will benefit from this offender's successful rehabilitation. One of the matters I have to consider is that young men such as Kaplantzi can grow and mature and leave behind a criminal past. It is clear from his evidence today, that he has come to understand that this sort of behaviour is not worth it if only because of the pain they inflict on their family and themselves. A choice had to be made by Kaplantzi when he is released to parole. I trust he will make the right one and I will give him that opportunity.
[3]
Orders
The breaches Community Corrections orders I find are proved in relation to each matter. I impose a sentence of two months' imprisonment to be served concurrently from 15 November 2019 to 14 January 2020.
The sentences for the remaining matters before the Court will commence from 15 January 2020. The sentences reflect a finding of special circumstances and a reduction of 25% for the plea of guilty: s 25D Crimes (Sentencing Procedure) Act 1999.
In relation to the first matter - fire firearm at dwelling-house with disregard for safety, taking into account the matter on the Form 1, I indicate a sentence of three years and four months, standard non parole period one year and nine months.
In relation to the second matter - use unauthorised pistol, noting Pearce, taking into account the matter on the Form 1, I indicate a sentence of one year and six months, non-parole period nine months.
There will be a total aggregate sentence of three years and four months which will date from 15 January 2020. There will be non-parole period of one year and eight months from that date which means that the earliest release date will be 14 September 2021.
The total effect of the sentence is one of three years and six months with a non-parole period of one year and ten months. The release date will be 14 September 2021.
It is a significant finding of special circumstances Mr Kaplantzi. Given the maximum penalty and the standard non parole period this is a light a sentence. It reflects your immaturity and the sheer stupidity of what you did more than the potential for harm. If you do not take advantage of the opportunity it is unlikely you will get such leniency extended by any other court. If you stuff it up on parole you will go back to your cell. Do you understand?
OFFENDER: Yes your Honour. Thank you.
AUDIO VISUAL LINK CONCLUDED AT 3.29PM
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Decision last updated: 21 April 2021