Solicitors:
McAneny Lawyers (for the offender)
File Number(s): 2020/00272892; 2017/00285993
[2]
Facts for sentence
At about 8:30pm on 23 March 2020, the victim, a man then aged 50, drove his friend's car back into the car space of her unit block in Market St. Wollongong. He had taken her car to the shops to buy soft drinks and milk. He was confronted in the carpark by two men. Both wore dark clothes and gloves. Their heads and faces were partially covered by masks and hoods. Their victim was told to "get the fuck inside' and shoved inside the door of a stairwell. He was forced up the stairs.
Part of what occurred was captured by CCTV. The victim's confusion and befuddlement at being confronted by two obviously armed and dangerous men is obvious,
One of his attackers had a large hammer or mallet; the other had a shortened firearm. They both waved these weapons about. The victim asked "who are you, what do you want." Both men were shouting at him. They wanted him to open a door. He said he had no keys.
The victim was hit in the chest with the mallet. When they got to the top level near his friend's unit he was told to "get down." Instead he threw the drinks at the men. The bottles missed and the men hit him with their weapons. He used a bamboo screen to hit out at the men and protect himself. He told them to "fuck off." The man with the mallet ran down the stairs.
Only after that man had left the enterprise did the other man shoot his victim in his knee. Realising he'd left the keys in the car the victim limped downstairs and retrieved them. He then went back to his friend's unit. There he lay down on a bed until police and ambulance arrived.
At the Wollongong Hospital some fragments from a bullet were removed from his knee. Thankfully the victim suffered no nerve, vessel or serious ligament damage. He made a good post-operative recovery.
He was also found to have abrasions to both his flanks, including an indentation on his left side that an ambulance officer described as "consistent with a sledge hammer handle."
A crime scene warrant was executed at the friend's flat. Cash and drugs were seized. A thorough police investigation, involving forensic DNA testing, firearm testing and examination of CCTV from the unit block, led to the arrest of both assailants. Benjamin Pratt was the man with the mallet. He was arrested on 20 September 2020. Although Pratt did not answer police questions, while he was before the Local Court he accepted responsibility for his role in the offending.
Pratt is to be sentenced today for the offence of using an offensive weapon with intent to commit an indictable offence: s33B(2) Crimes Act 1900 - maximum penalty 15 years imprisonment. He has asked that when I sentence him for that offence I take into account on a Criminal Procedure Act 1986 Form 1 the offence of assault occasioning actual bodily harm while in company: s 59 Crimes Act 1900.
The shooter, Matthew McGarrigle, is to be sentenced in this court on 5 November 2021.
[3]
Objective Seriousness
The indictable offence said to have been intended is intimidation. The weapon used by Pratt is the hammer or mallet. Pratt is not to be sentenced for a firearm offence or the injury inflicted to the victim's knee. It is accepted that he had no prior knowledge that the firearm was to going to be fired, as opposed to its being used to intimidate. That said, he and another man, both disguised, accosted another older man in a carpark. Both were obviously armed. They both threated him, intending he be intimated; that is fear for his safety. Force was used. He was manhandled into a stairwell and up a flight of stairs. He had to fight them both off until Pratt retreated and ran. It must have been a terrifying experience for the victim. He suffered injury before he was shot.
Those matters indicate some degree of planning. Given what I can see on the CCTV Pratt was also aware his co-offender was brandishing a firearm. At this stage both were acting together. The demands on their victim were persistent and very threatening.
[4]
Other relevant matters
While I do not sentence for the assault occasioning actual bodily harm offence it must be taken into account. It was not a trivial offence. The victim was hurt and the results of that harm were evident to the ambulance officer. Pratt's acceptance of guilt for this matter means greater weight can be given to the need for personal deterrence and retribution when I synthesise the appropriate sentence for the s33B(3) matter: Attorney General's Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39] - [42].
Pratt entered his guilty plea in the Local Court. He will receive a 25% reduction of the otherwise appropriate sentence to recognise the utilitarian value of that plea: s25D(2) Crimes (Sentencing Procedure) Act 1999.
While this is the first violent offence on his criminal record he is not entitled to the leniency often given first offenders. Pratt spent a short period in gaol in 2019. He has been treated with leniency and understanding by Local Magistrates. Pratt initially responded well to parole supervision but this, as is obvious, did not last.
The sentence must take into account that it was committed while on parole and while subject to Community Corrections Orders, and thus in breach of a number of implicit promises to be of good behaviour. I must also sentence him today for breaching those Community Corrections Orders. As I will take those breaches into account in aggravation of sentence I will not double count that factor. Accordingly, the breach sentences will be made concurrent with the substantive sentence.
The present COVID-19 crisis has increased apprehension by prisoners about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Access to telephone calls and AVL links has increased but social visits were suspended for over a year reducing any capacity to remain in direct contact with pro-social friends and family. This is a considerable problem here as Pratt's family and friends, as his references reveal, are very pro-social and anxious to be involved in ensuring he does not offend again. Personal visits had only just resumed, only to be stopped again.
CV-19 has not entered our gaols. If it does Pratt falls into a category that might be considered for early parole: s276 Crimes (Administration of Sentences) Act 1999.
The offender has endured nearly a year of such restrictions. He faces them now. He may face them again. The lack of visits, and that heightened anxiety and concern, are relevant factors that must be synthesised along with all other matters.
While every offence and every offender requires individualised treatment courts must take guidance from a number of sources. The maximum penalty, here 15 years imprisonment, is one important guide. I must have regard to the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes. Further, in matters such as this it is critical that there be proper recognition of the harm done to the victim and the community.
While I have regard to other cases and the Judicial Commission statistics, as Mr Hart, Counsel for Pratt suggests, I must be cautious a s 33B(2) Crimes Act offences cover a wide variety of offences. There is no pattern or range of sentences discernible. Rather, the statistics highlight the fact that each offence and each offender requires individual consideration.
[5]
Subjective Matters
The Sentence Assessment Report is generally positive. Pratt was on parole at the time of the offence but supervision had been suspended as he had a mental health care plan, a job and had not reported any drug use. Pratt is regarded as a polite and reliable prisoner who is employed and has no misconduct charges. The author notes the violence associated with this offence appears out of character but that Pratt he does have a tendency to go along with anti-social peers. He has shown a willingness to engage in programs. A supervision plan can be put in place. That plan will involve referral to programs, referral to drug and alcohol services and a referral to a psychologist.
I also have the benefit of a report from Mr Jones, a psychologist, and a number of references from people who know Pratt well, including his current partner, the mother of his young children.
Pratt's personal history is sad and not controversial. He was born in 1985. He grew up locally in a loving and hardworking family. He did Ok at school and had a number of jobs. He resorted to drug use when his first major relationship ended but a new partner and family support put him back on track. He and his partner had four children but when one died at 3 ½ months Pratt's life changed. He blamed himself, wrongly, for his failure to resuscitate his baby. He did not respond well to therapy.
Mr Jones puts a compelling case for how the offender fell back to the use and abuse of drugs. And, how his behaviour was influenced by anti-social peers. He also advances Pratt's reasons for committing this crime - he did it to help enforce recovery of a drug debt. That reason does not mitigate nor does drug use; far from it. Mr Jones says Pratt was goaded into doing what he did. I cannot accept that assertion. But it is to Pratt's credit that he voluntarily left the enterprise.
Understandably Mr Jones focusses on the impact of Pratt's child's death. He did not respond well to treatment at the time. He soon, as his criminal record makes clear, fell in with other drug users and committed crimes to secure funds and drugs. He will need assistance on release if he is to learn how to cope with significant stress without resorting to illicit drug use. Treatment involving Cognitive Behaviour Therapy can be put in place on his release.
It appears that after the offence and before his arrest he showed some understanding of how serious his predicament was and he did not reoffend. He expressed appropriate remorse, through his wife and psychologist. Although not on oath I am prepared to accept he will take the help offered him and not re-offend. Obviously, he will need help, and equally obviously if he does resume his drug use his prospects will be poor.
Pratt has responded well while in custody. He remains close to his parents and sister but they will not tolerate further drug use. Support from pro-social members of the community, adequate supervision and assistance on release are important indicators for his successful rehabilitation.
This object of sentencing should never be lost sight of. Many studies indicate that that offenders who received parole supervision upon release from custody took longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497.
[6]
Submissions
I have had the benefit of written and oral submissions from Mr Hart and Ms Hughes, Solicitor Advocate for the Director of Public Prosecutions. I have sought to incorporate those submissions into this judgment. I trust it does justice to them. Both agree on matters of principle.
Mr Hart urges a sentence that incorporates a significant finding of special circumstances. He submits that this offence was a turning point in the offender's life. It has helped him heal. He voluntarily left the scene. He did not offend between that time and his arrest. He has been brought back into his family and has done all he can to ensure he never loses their trust and support again.
Ms Hughes in response recognised the undoubted discretion of the court but her submissions direct my attention to the objective seriousness of the offence.
[7]
Synthesis
There must be a custodial sentence. There is however a powerful subjective case and many reasons to find special circumstances so that the offender can be supervised and managed on parole for a long as practicable and necessary. That said, the minimum period for which he must be imprisoned should also properly reflect the gravity of his offence and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704.
While full weight will be given to mitigating circumstances I must return to what was done. And what was done requires appropriate punishment; that is, a sentence that marks the court's view of the seriousness of the crime. The sentence should also let other wrongdoers know the retribution that will fall upon them if they commit a similar crime: R v Herring (1956) 73 WN (NSW) 203 at 205.
[8]
Orders
You are convicted. Had it not been for your plea of guilty a sentence of about 4 years 6 months would have been imposed.
Taking into account your guilty plea a finding of special circumstances and the matter on the Form 1, you are convicted and sentenced to a term of imprisonment of 3 years 4 months consisting of a non-parole period of 1 year 8 month to commence on 20 September 2020 and expire on 19 May 2022.
You will be eligible for consideration for release to parole on 19 May 2022 to serve the balance of term of 1 year 8 months to commence on 20 May 2022 and expire on 19 January 2024.
[9]
Breach Community Corrections orders
In each matter the breach is proven, Community Correction order is revoked; you are sentenced to a term of imprisonment of 3 months to commence on 20 September 2020 and expire on 19 December 2020.
[10]
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Decision last updated: 22 July 2021