R v McGarrigle

Facts for sentence

1. There are agreed facts before the Court. In summary. On the evening of 23 March 2020, the victim, a man, then in his 50s, drove his friend's car into the car space of the unit block in Market Street. He had taken the car to purchase soft drinks and milk. There he was confronted by two men, Pratt and McGarrigle. Both wore dark clothes, gloves; their faces were partly covered. The victim was told "to get the fuck inside" and shoved inside the door of the stairwell. Some of that is caught on the CCTV. The victim's confusion and befuddlement at being confronted by two obviously armed and dangerous men is obvious.
2. Pratt was carrying a large hammer or mallet and McGarrigle had a gun, a shortened firearm. The victim was hit in the chest by the mallet and when they got to the top level near his friend's unit he was told to "get down." Instead, he threw his drinks at the men. He missed. He was hit again with their weapons. He then used a bamboo screen to hit out at the men telling them to "fuck off." Pratt then ran down the stairs.
3. After Pratt had left, McGarrigle lifted the shortened firearm. He stood back, pulled back the gun's bolt, and as the victim yelled, "Don't", the gun went off. The victim was shot in the leg. McGarrigle ran. The victim realising he had left his keys in his car limped downstairs and retrieved them. He then went back to his friend's unit. He lay on a bed until the ambulance arrived.
4. At the Wollongong Hospital parts of a bullet were removed but some small shards, embedded in bone, were left. He suffered no; nerve, vessel or serious ligament damage. While he made good post‑operative recovery a letter from Dr Gupta notes that since the incident he has been seeing a physiotherapist and an exercise physiologist. He has been seeing a psychologist every three to four weeks for Post‑Traumatic Stress Disorder. He used heavy painkillers post‑surgery and been on analgesics since. He was also prescribed Valium to manage his anxiety. He still has ongoing pain issues in his left knee and some swelling, including a possible meniscal cyst. He has been referred to orthopaedics for further assessment. It is possible that as he ages he will experience, arthritic changes due to this injury. At the Wollongong Hospital he also complained of, and was found to have, abrasions on his body, including an indentation to his left side that an ambulance officer described as consistent with a sledgehammer handle.
5. McGarrigle was arrested on 12 June 2020.

Form 1

1. The matter on the Form 1 is the same offence I sentenced Pratt for, it refers to the matters before to the shooting: R v Pratt [2021] NSWDC 335. I will take it into account when I determine the appropriate penalty for the discharge firearm offence. I do not sentence for that matter but it does operate to increase the sentence that would otherwise be appropriate in particular when I consider the need for personal deterrence and importantly retribution for the crime for sentence: Attorney General's Application No 1 [2002] 56 NSWLR 146 at [39 - 42]. Here it is very appropriate I take it into because what preceded the commission of the offence for sentence must be synthesised and taken into account in my judgment. Because of that fact I have to be careful not to double count matters on the Form 1 as they also otherwise inform the sentencing exercise. Here, as was out in Attorney General's Application [No 1], a matter on a Form 1 can lead to a significant increase in the otherwise appropriate sentence. That increase has to be factored into my synthesis in a way that ensures that there is no double.

Objective seriousness

1. Here a citizen, going about his ordinary business was confronted by two armed men and then shot, the matter for sentence. The elements of the offence are the discharge of the firearm and intent to cause grievous bodily harm. As is abundantly clear from the facts here, firearms if possessed unlawfully are liable to be used and if used are liable to be a source of great danger or personal damage. A loaded weapon was brought and immediately before the firing a bullet was put into the breach. This firearm was used in the stairwell and verandah of a unit block occupied by a large number of people. The firearm was discharged when it was pointed at a person who was seeking to defend himself from an unwarranted attack. The actual injury suffered is relevant. The victim was lucky that the physical harm suffered was relatively low in the range of firearm possible injuries. That said it was still a very serious type of injury as any firearm injury would be.
2. In his statements to his psychiatrist the offender said that he thought he was enforcing a debt and more importantly he said he had not slept for a couple of days and was on the drug methylamphetamine or ice. Given the nature of the offence and the facts before me I am prepared to accept what he said. But, there is no indication in the facts before me that any debt was owed by this victim. What is clear is that from all the material I am prepared to accept that McGarrigle was under the influence of methylamphetamine at the time. That fact does not mitigate, in fact, frankly it makes the offence more serious because anyone using a drug such as methylamphetamine who goes about in the community armed puts the community at risk.

Maximum and Standard Non-Parole Period

1. The maximum penalty of 25 years and the standard non‑parole period of nine years require careful attention. I have to give content to the standard non‑parole period. I am required to assess the objective seriousness without reference to matters personal to the offender and wholly by nature to the offending. This does not mean I do not synthesise those factors. Rather it means I cannot engage in a staged approach to sentencing. The maximum penalty and the standard non‑parole period are important sentencing measures that must be taken into account.

Criminal record

1. The offender has spent most of his adult life in custody. He had only been in the community a short time when these offences occurred. He was on parole. When he was released to parole I am sure he made a promise to himself, to his family and, of course, to the State Parole Authority, that he would not re‑offend. He did offend. Although he engaged superficially with Community Corrections the pandemic meant that he could not engage with the intensity that I hoped when I sentenced him on the last occasion.
2. This offence led to the breach of parole, understandably. When I sentenced McGarrigle on the last occasion, I took into account his youth, his immaturity and his need for close supervision and monitoring. I noted that he still had family support from both his parents and that he had some support from his mother who had been estranged from him. I noted at the time that his family support was provisional, requiring him to prove himself to them. I noted that if he did take the help offered there was some hope for his future, but I said if he chose to adopt the lifestyle similar to that of the people he is sharing cells with he could look forward to a long time in gaol. It gives me absolutely no pleasure, in fact it causes me some distress, that my prediction was correct.

COVID

1. He has served all of his remand period and parole period to date subject to the impact of the COVID pandemic. COVID has entered our gaols. No one has, as far as I am aware, received the advantage of early emergency parole, s 276 Crimes (Administration of Sentences) Act 1999. I am aware that a number of restrictions have been and are still imposed: COVID-19 (coronavirus) Response, Corrective Services NSW; https://www.coronavirus.dcj.nsw.gov.au/services/corrective-services/impact-of-covid-restrictions viewed 7/8/2021. There is abundant evidence put before this Court and other courts that programs are restricted, and prisoners are spending lengthy periods in their cells in an attempt to prevent the spread of the pandemic. Personal visits are not allowed and access to pro‑social family members reduced. Matters I must take into account.
2. I sentenced Pratt on 22 July 2020: R v Pratt . Pratt pleaded guilty and he put forward a powerful subjective case. His sentence was three years and four months with a non‑parole period of one year and eight months.

Parity

1. Every sentence must be determined by having regard to the circumstances of co‑offenders and their respective degrees of culpability. Like must be compared with like. However, different personal and criminal histories may justify a real difference in the time each serves in prison: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. This principle, known as parity, is a classic example of the need so far as possible to ensure equal justice: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246. It can also encompass the structure of the sentence: Lau v R [2010] NSWCCA 43; Bell v R [2019] NSWCCA 271. But I did not sentence, and did not take into account this firearm offence when sentencing Pratt. And, I am not sentencing McGarrigle for the same offence I am taking into account on the Form 1.

Submissions

1. I have had the benefit of written and oral submissions from Mr Steward and Ms Hughes, Solicitor Advocate for the Director of Public Prosecutions. I sought to incorporate the submissions into this judgment; they have informed it. There are no significant differences between both counsel on matters of principle or how the objective seriousness of the offence is to be assessed. What differences there are relate almost solely to how I deal with the possess firearm offence. I disagree with Mr Steward; there must be an independent sentence and some additional punishment for that offence as the possession of the firearm included a period outside the matters that I take into account when I sentence for the discharging a firearm with intent to cause grievous bodily harm offence.

Subjective case

1. The offender's father wrote a letter to the Court, it was short and poignant. There is information before me that he provided work to his son when he was released. He says: "Matthew does need help with a lot of issues and I hope he can get the help he needs and make this his last offence. As his father I pray to God I am still around to see my son turn his life around and head in the right direction. It pains me immensely to see the path he has taken in his life. In saying this he is my son and I love him dearly and will always be there for him".
2. On the last occasion I had the benefit of the opinions of Ms Duffy, a respected psychologist. I have had regard to my earlier judgment. On this occasion I have the benefit of a comprehensive report from Dr Furst. His report notes the offender's personal history and the impact upon him of his parents' divorce. He did have a head injury when young but Dr Furst's opinion is that that would have no lasting consequences nor is it related to his offending behaviour. What is clear, however, is that when still young, still a teenager, McGarrigle took up the use of and abuse of illicit drugs. From the age of 17 and while using methylamphetamine (ice) he started doing, as he said himself, "really dumb stuff." Much of that dumb stuff involved offending and the use or possession of firearms.
3. His custodial record shows some relatively minor breaches of prison discipline but nothing significant. He appears to have cooperated with the authorities. He completed an EQUIPS Aggression and an EQUIPS Addiction Program and he has worked in the carpentry shop.
4. He was, prior to committing the offence, about to enter a drug and alcohol rehabilitation centre. Part of the tragedy of this case is that he did not get that opportunity.
5. He is still only 22, he is still immature. He has spent his entire adult life in gaol.
6. Although not on oath his statement to Mr Furst appears to match with all the material before me. He told Dr Furst that after spending the previous three years in custody he felt "lost" on his release. He said he tried to abstain and worked with his father, but he quickly resumed; contact with his old associates and drug use. He told Dr Furst something about being owed money. But the impression I get is that at the time of the offences he was not thinking clearly; and it would seem to be that methylamphetamine is the best explanation for that. He told Dr Furst he regrets shooting the man but there is no indication of any understanding of, or remorse for, the consequence of his actions.
7. Dr Furst's diagnosis, a substance use disorder noting that he may have a biological vulnerability towards addiction. That early onset drug use, was a way of dealing with conflict in his family, has plagued his life since a teenager. Dr Furst recommends that he engage in a structured and intensive drug and alcohol treatment program on release. Dr Furst recommends that he be offered the opportunity of engaging in the Compulsory Drug Treatment Program. That program, as Dr Furst notes, is a particularly effective one but it is totally denied any offender from the Illawarra. Once again, I urge our Government to make that facility available to offenders in the regions. I cannot understand why we in this community are discriminated against, because programs which have a particular type of success are unavailable to people here. I say that knowing that the strict requirements would not be met in any event because, as Dr Furst indicates, Drug Court programmes not available to those who commit firearms offences.
8. Here we have a young man who has committed serious offences shortly after his release. He poses a particular danger to the community if he reoffends again. He should have access to programs designed for young people with his problems and designed to equip him for life in the community on release. This should be less expensive and more conducive to community safety than simply locking him away.
9. His offending has put him in the position, but more could have been done. He will need to be closely monitored on release and for as long as practicable. That and the fact that this sentence will be partly accumulated on the earlier sentence provides a basis for a finding of special circumstances. Additionally, there is some evidence, that rather than being reformed by his three years in custody gaol has become normal for him and he has, to a degree, been institutionalised. He is likely to become even more institutionalised the longer he spends in prison but, no matter what mitigatory matters I take into account and his subjective circumstances, the minimum term he must serve for the principal offence must properly reflect the purposes of sentencing and particularly the seriousness of what he did.
10. I must now apply all those matters and synthesising them. In relation to the two matters before the Court you are convicted. I give effect to a finding of special circumstances, and I reduce the otherwise appropriate sentences by 25%.

Orders

1. In relation to the possess firearms matter, the 166 certificate, there will be a fixed term of 12 months imprisonment. I have imposed a fixed term because that terms parole period will be subsumed by the other sentence. That sentence will commence on 12 October 2020 and expire on 11 October 2021. If necessary I make a firearms destruction order.
2. In relation to the discharging a firearm with intent to cause grievous bodily harm, taking into account the matter on the Form 1, there will be a sentence of seven years and six months imprisonment.
3. The formal orders are: A non‑parole period of four years and three months will commence on 12 December 2020. You will be eligible for consideration for release to parole after you have served four years and three months which will make that date 11 March 2025. The parole period or balance of the sentence, three years and three months, will commence on 12 March 2025. The total sentence will expire on 11 June 2028. That is - One year for the rifle possession starting 12 October 2020. The discharge firearm sentence starts 12 December 2020 seven years six months, non‑parole period four years and three months, non‑parole period three years three months, release parole date 11 March 2025, total sentence expires 11 June 2028. AUDIO VISUAL LINK CONCLUDED AT 1.34PM

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: 06 April 2022