R v Pallier [2017] ACTSC 112

Crimes Act 1900 (ACT) s 20

Firearms Act 1996 (ACT) ss 43 and 249

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 33

R v Micallef (unreported, New South Wales Court of Criminal Appeal, Mahoney JA, Hunt CJ and Allen J, 14 September 1993)

R v Zoef [2005] NSWCCA 268

Office of the ACT Director of Public Prosecutions (Crown)

SCC 92 of 2016; SCC 95 of 2016; SCC 97 of 2016

1. On 6 March 2017 the offender pleaded guilty to the offence of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 13 years imprisonment.

2. The offender has requested that two other offences be taken into account. They are:

(a) Possessing ammunition contrary to s 249(1) of the Firearms Act 1996 (ACT). The maximum penalty for this offence is a fine of $1,500.

(b) Possessing a firearm contrary to s 43(1)(a)(ii) of the Firearms Act 1996 (ACT). The maximum penalty for this offence is five years imprisonment.

3. These two charges arose from the offender's involvement in the main charge. On 10 January 2016 the offender shot a Mr Rogan in the right leg, using the rifle which is the subject of the firearms charge. The background to the shooting arose from a dispute between Mr Rogan and Mr Hooper concerning the latter's partner, and information that there had been some sexual liaison between her and Mr Rogan.

4. The offender was in Mr Hooper's camp and intervened in a physical fight that was occurring between Mr Hooper and Mr Rogan. There is no suggestion that the offender shot Mr Rogan for the purpose of defending Mr Hooper. The shooting was callous and unnecessary.

5. In a record of interview conducted on 29 January 2016, the offender suggested that he had not intended to shoot Mr Rogan, but rather only to make a loud bang.

6. The offender was initially arrested on 11 January 2016 and then released on bail on 22 June 2016. After his plea of guilty, he returned to custody on 6 March 2017. Any sentence of imprisonment must be backdated to 24 September 2016.

7. The offender was born in Bathurst in 1989. His parents separated at his birth and he did not meet his father until he was 17 years of age. He had a stepfather who was apparently abusive. After reuniting with his father, the offender has apparently developed a good relationship with him, as well as with his half siblings.

8. The offender has two children of a relationship but does not appear to have any contact with them.

9. The offender did not do very well at school. He was expelled at the beginning of year nine. Since then, he has had a variety of labouring and building jobs. He apparently has the capacity to return to full-time employment. Exhibit 1 is a letter supporting this proposition.

10. After a number of years of alcohol abuse, the offender has apparently brought this problem under control. Before being taken into custody, he was a weekly user of methylamphetamine.

11. The offender suffered a head injury about three years ago, when he was attacked with a baseball bat. He also suffered a back injury at work. He takes prescription medication for depression and anxiety and attends counselling. He also has some drug related dental problems.

12. Although the offender has pleaded guilty to the offences, the Pre-Sentence Report records that he has not taken responsibility for his actions and feels that he was manipulated by his associates. He does not express any sympathy with the victim. I do note, however, that the offender now agrees with the Statement of Facts (Exhibit A).

13. The offender's record was described by his counsel as "not substantial for a man of his age". I disagree. I think the record is not only substantial but also contains a number of matters relevant to this sentencing process. There are offences relating to prohibited weapons and breaches of court orders. The latter impact on the appropriate manner of dealing with this offender.

14. The plea of guilty cannot be taken as a reflection of any remorse. Nevertheless, it does have a utilitarian value, deserving of a discount on sentence.

15. The Pre-Sentence Report assessed the offender as being at a medium risk of general re-offending. It stated that he needs to deal with substance abuse, mental health issues, financial stress and antisocial values and attitudes.

16. The victim suffered a gunshot wound to his leg. There is no Victim Impact Statement but the material available indicates the victim suffered a fractured femur requiring the insertion of screws and plates. The victim will be permanently scarred.

17. I think this offence is of approaching medium objective severity. The courts must be concerned with members of the public not only possessing firearms but carrying them about and being prepared to use them. It was submitted that this was not a pre-meditated crime. Nevertheless, the offender chose to get out of the car with his loaded gun and then use it.

18. When sentencing for any offence where a term of imprisonment is dictated as a punishment, it is necessary, before imposing such a sentence, to recognise that imprisonment is a last resort and be satisfied that there are no other appropriate options available. In this case, a suspended sentence or an Intensive Corrections Order (ICO) might be considered as options. Neither option was suggested by the offender, although counsel for the offender raised the possibility of a deferred sentence to allow for a period of drug treatment. No practical solution was put forward. In any event, the severity of the offence does not allow for this approach. I note that an ICO requires the consent of the offender.

19. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6, and the purposes of sentencing as stated in s 7.

20. It is also necessary to have regard to s 33(1) (za) of the Crimes (Sentencing) Act 2005 (ACT). Some of the cases I have considered include R v Micallef (unreported, New South Wales Court of Criminal Appeal, Mahoney JA, Hunt CJ and Allen J, 14 September 1993) (Micallef) and R v Zoef [2005] NSWCCA 268 (Zoef). As often occurs, it is difficult to identify other cases with closely similar facts.

21. The facts in Micallef are significantly more serious. Zoef is closer to the present case but has the distinction that, in that matter, four shots were fired at the victim. Both cases stress the need for general deterrence where firearms are involved.

22. The Crown agreed that the two summary offences arose from the same transaction. I think that any terms of imprisonment should be served concurrently.

23. Having regard to the above, I see no alternative to a prison sentence. I think there should be a 10 per cent discount for the plea of guilty. The term of imprisonment which I think is appropriate is 2.5 years (30 months) which after the reduction of 10 percent becomes 27 months.

(i) For the offence of recklessly inflicting grievous bodily harm the offender is sentenced to imprisonment for 27 months commencing on 24 September 2016 and ending on 23 December 2018.

(ii) For the offence of possessing ammunition the offender is fined $500 with no time to pay.

(iii) For the offence of possessing a firearm the offender is sentenced to 3 months imprisonment to commence on 24 September 2016 and end on 23 December 2016.

(iv) I set a non-parole period of 18 months to commence on 24 September 2016 and end on 23 March 2018.

(v) I recommend to the Director of Corrective Services that the offender be enrolled in any available drug treatment programs.

(vi) I further recommend that the authorities be made aware of the offender's mental health conditions, in particular his depression.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim.