R v Sharp

Agreed facts

1. It is proper I start with what brings Sharp before the Court. He was in a relationship with his partner for about two years. He often stayed with her and in Lake Heights. He had also for many years lived with and cared for, his grandmother in Sydney. He also stayed in her home.
2. On the afternoon of 22 February 2019, his partner and her children were in the drive-thru at the Warrawong McDonald's. His two victims were behind them in their Ford dual cab. His partner reversed towards them. Horns were sounded; there was yelling and gesticulations. The two vehicles left McDonald's and drove down Northcliffe Drive. Again horns were sounded, fingers were displayed. Eventually, both cars pulled over and two drivers got out. Both assert each was pushed by the other, both then drove away.
3. His partner followed the other car for a period, she called Triple‑0 and she took some photographs of the car. She then went to the police station to report what she believed was the crime that had been committed against her. While there she was able to get the name of the other driver.
4. His partner was in contact with the offender and he searched for the driver on Facebook. Soon thereafter he created a false name and false account and contacted the victims via Facebook. A ruse led him to get him their address in Koonawarra.
5. Police then later attended his partner's home and conducted their investigations. Sharp arrived. It is clear that his partner was not entirely happy with the way the police were conducting their investigation and it is also in the agreed facts that at the same time the offender was in Facebook conversation with the other driver. Police then left to continue their investigations at the other driver's address. They left the partner's home at 11.25 pm.
6. Less than an hour later at 12.40am on 22 February 2019, Sharp went to the other driver's address with a baseball bat. He smashed their dual cab vehicle - $10,000 damage was done. This event occurred before the police told his partner that they would not be taking action and just after Facebook messages were sent by the offender using a fake address. Those Facebook messages were threatening, offensive and designed to intimidate and cause distress and threaten harm.
7. At 9.30 am on 23 February 2019, the offender was again at the victims' home. He took photographs of two vehicles outside the premises, the dual cab which he had earlier smashed and a Ford Ranger.
8. On or before 5 March 2019, Sharp made a pipe bomb using PVC pipe, glue, circuit boards, with a 100 sparklers, as an accelerant. He soldered batteries in place to a switch and he wrapped the whole device in electrical tape.
9. At 2.39 am on 5 March 2019, he arrived at the victims' home in Koonawarra. He attached or placed the pipe bomb under the Ford Ranger. At 3.45 am that improvised explosive device exploded. Sharp later told the police that he set the timer to go off in ten minutes and left but returned because as he feared that he had placed the device too close to the petrol tank of the vehicle. When he returned the Fire Brigade were already on the scene. The damage to the car was relatively minimal; after the explosion the sparkler's metal parts were stuck into the tyres and other items had been spread around.
10. Sharp told the police that he had prepared and wrapped the device to avoid any significant explosion or items being expelled from it.
11. At 9.59 am on 21 March 2019, a further threatening Facebook message was sent using a fake profile. In context, it was addressed to one of the victims and mentioned threats to his brother and family and mentioned further intimidation.
12. The offender was arrested on 2 April 2019. A search warrant was executed on his home in Sydney. An electronic control device, an extendable baton and a small quantity of methylamphetamine was seized. It is accepted that both victims, the other driver and his partner, would have been intimidated by this course of conduct.

Offences

1. The offences for sentence are; manufacture a military style weapon (s 25A(2) Weapons Prohibition Act - maximum penalty 20 years imprisonment) and use prohibited weapon s 7(1) Weapons Prohibition Act 1998 - maximum penalty 14 years with a standard non‑parole period five years.
2. On a s 166 Criminal Procedure Act 1986 certificate are two Commonwealth offences of use carriage service and threaten harm: ss 16A and 17, The Crimes Act 1914 (Cth); maximum penalty if dealt with summarily, two years imprisonment.
3. On a Form 1 related to the use prohibited weapon offence, is the offence of damage property (the dual cab) and the two counts of intimidation. On a Form 1 that attaches to the manufacture military style weapon are the possess prohibited weapons matters and the offence of possess prohibited drug.

Objective seriousness

1. The offences were all part of a concerted attempt to threaten and intimidate the two victims. The offender persisted using a variety of means to continue with that threatening and intimidation.
2. The most serious offence is accepted to be the use of the prohibited weapon offence. That offence occurred at the home of the two victims. It was an attempt to intimidate them with a potential for damage to their car. There was actual damage to their car but not as significant as the car subject of the Form 1 offence.
3. For those who are not fortunate enough to own their homes, cars are probably the most important possession they own. Loss of or damage to a person's car can cause significant additional harm, something I am sure that the offender was well aware of. The offences were planned and the victims were tracked and targeted on multiple occasions. The plan was executed, with a high degree of premeditation.
4. In his submissions Mr Fraser, for the offender, says that the offences were poorly executed because the offender was very promptly caught. There are some comments in the agreed facts that he thought he had taken steps to avoid detection that an offender failed to think clearly about avoiding detection does not mitigate his crimes.
5. The crimes here were planned and had the desired effect of intimidating the victims. So far as the principal offence is concerned, I accept that it was Sharp's intention that explosion scare and intimidate but not cause physical harm. The device was predominately made up of plastic and sparklers but it was placed in a potentially dangerous position and was sophisticated enough to use a timer. As such it risked indiscriminate harm. Apart from choosing the time of the explosion in the early hours of the morning the offender had no control of any consequences. He did not who might be there. He himself realised belatedly that cars are potent sources of flammable and explosive material.
6. Mr Fraser submits and I accept, that while the offence is classified as as "manufacture military style weapon" when one considers a range of weapons that are captured by the Weapons Prohibition Act this particular device is not of a style that would ordinarily be associated with the word "military." This was not the sort of improves explosive devices used, for example, by the Taliban in Afghanistan. It was not of a scale that could, of itself, have caused significant physical harm to an individual. But given where it was placed it had some potential to precipitate a further explosion of the car petrol's tank, as the offender himself realised.
7. In our community offences like this rarely this occur. I draw that conclusion from my review of the authorities. In many cases general deterrence is a very significant sentencing factor. That is a requirement that the court by the severity of the sentence imposed seek to deter others from committing such offences. Applicaition of that principle is not needed in this case because everyone in the community would understand how serious such offences are and the serious consequences of such offences. That does not mean a harsh sentence can't be justified, to the contrary; it just that I prefer the term retribution. Everyone has to understand how potentially dangerous this device was and everyone has to understand the loss of trust and community disquiet that offences such as this cause.
8. The motivation for the offence appears to be to create fear in and intimidate the victims. Sharp appears to have been motivated by a genuine but misguided belief that somehow his partner had been harmed and by his a desire for revenge. He also expressed a belief that the police would not properly investigate the matter but, as the timeline indicates, his actions against the victims commenced before the police investigation had been concluded with before their decision not to take his partner's complaint further.
9. Nothing that the offender believed, genuine or not, could justify or explain what was done. There was nothing particularly unusual about the initial incident which led to the grievance, it was a minor incident and should have been quickly forgotten. I accept that the motivation was to cause psychological, not physical harm but that does not diminish the seriousness of the offence.
10. The courts and community are well aware how much harm sustained fear can cause someone, particularly if they believe that they are being irrationally targeted. The victims would never have felt safe during this period and their feeling unsafe and consequent distrust of others would have been exacerbated by each of the offences and must be taken into account. That psychological rather than physical harm was intended does not significantly derogate from the seriousness of the offending. Physiological injury may be no less disabling and permanent that physical injury.
11. I have to take care in how I deal with the matter of motive here. The nature of the particular offending and its consequences and the offender's appreciation of those consequences inform an assessment of the objective seriousness irrespective of motive: Muldrock v The Queen (2011) 244 CLR 120, at [27]. An assessment of the offender's moral culpability is part of an assessment of objective seriousness.
12. The offender's motive must not and cannot overwhelm the proper assessment of the objective seriousness referrable to the offending conduct itself. The applicant's motives here do not elevate his moral culpability nor do they elevate the objective seriousness of the offending. Motive is significicant to how I address both specific and general deterrence, which remain important considerations: Carr v R [2014] NSWCCA 202.

Form 1

1. The offender asks that when I sentence him for both offences I take into account a number of other matters on respective Form's 1: ss 32, 33 Crimes (Sentencing Procedure) Act 1999. He has admitted his guilt in relation to each of these matters and it should be clear from this judgment that it is appropriate I do so.
2. Some Form 1 matters such as the methylamphetamine possession would not have led to custodial sentences and others such as the intimidation relate to the principal offences and have already been taken into account when I assessed the seriousness of what occurred. I do not double count such factors. Others such as the separate criminal damage to the dual cab and the prohibited weapons offences do operate to increase the sentence that would otherwise be appropriate. So much was made clear in Markarian v The Queen (2005) 228 CLR 357. I sentence only for the two matters to which the Form 1 relates and not individually for the Form 1 matters. The increases operate to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1 (2002) 56 NSWLR 146 at [39] - [42]. Sometimes as with the separate damage to the other car, there has to be a significant increase: Attorney General's Application No. 1, at [18]; Grube v R [2005] NSWCCA 140.

Victim Impact

1. A Victim Impact Statement has been received on behalf of both primary victims. It sets out the personal harm suffered by them as a direct result of the offence: s 26 Crimes (Sentencing Procedure) Act. I do not regard their baby as a third victim but I do not ignore the fact that there was a child at the home where the offence occurred. Here, the Victim Impact Statements attests to the kind of harm that might be expected. An exact psychiatric diagnosis was not required. There is little difficulty in accepting what was set out. It reflects the expectations and common experience of the Court: R v Tuala [2015] NSWCCA 8. The statement in part reads, "We were threatened by him, he put us on edge, we did not know who he was or what he looked like but he seemed to know everything about us. We were without a car for some time, having a child made this difficult to get to appointments."
2. Ther victims suffered direct loss because of the damage to both cars. As a consequence of the incident at their home in March, they were told it was not safe to stay at the home and they had to relocate a number of times during the course of the investigation. To do so with a newborn baby and dogs was very difficult and stressful. "When we eventually moved back home we felt very unsafe and didn't want to leave the house only to do what we needed to do. Every time we saw a strange car in our street it made us very anxious, every time we heard a loud bang it made us very anxious. As a result we started not to sleep, we became sick from a lot of various illnesses. Also we had to both go and see a psychologist on a regular basis."
3. One victim was retrenched and he has been diagnosed with multiple disorders. There is concern that the female victim did not feel that she could be there mentally for their newborn daughter. The Statement speaks of the strains on their marriage; if it was not for counselling they may have separated or divorced after only a short period of marriage. They go on to say that they do not trust the police but that is not a matter that I take into account so far as the Victim Impact Statement is concerned.
4. Eventually, they had to sell their home. They have said they have had to start their lives from scratch and their lives will not be getting back to normal soon. They believe that this incident could have been avoided.
5. They are matters that I can and do consider and they accord with what I would expect to have occurred to victims in a case such as this.

Guidance

1. Every offence and every offender requires individualised treatment. Courts take guidance from a number of sources. Here they include the maximum penalties prescribed and where applicable the standard non‑parole period. I have had regard to the decisions of other Courts and the purposes of sentencing, which here include proper recognition of the harm done to the victims and the community and the need for adequate punishment and specific deterrence.
2. While not prescriptive, careful attention to both the maximum penalties and the standard non‑parole period is required. The standard non‑parole period represents the non‑parole period for an offence taking into account only the objective factors affecting the relative seriousness of the offence and it applies to an offence in the middle range of seriousness. I am not required to compare and contrast the actual offence with some abstract one, Tepania v R [2018] NSWCCA 247, at [103] to [120], but I am required to give content to the standard non‑parole period. As the High Court has made clear, I cannot engage in a staged approach to sentencing: Muldrock. Accordingly, my findings as to the objective seriousness of the principal offences do not compel any one result.

Criminal record

1. I have to have regard to Sharp's criminal history. It is extensive but there is nothing like these matters. He was on bail for an offence of stalk/intimidate. He was also on a bond, matter that will have to be taken into account in aggravation of sentence. It is not his first time in gaol. He is not entitled to the leniency often given to first offenders.

Case for the offender

1. Sharp did not give evidence but he is not to be punished as a consequence. I have been able to glean his personal history from the various material that was put forward, including his letter to me and a helpful report of Ms Durkin, a clinical psychologist respected by the Court.
2. Sharp is now 34. He grew up in Western Sydney. Before his parents separated tension and conflict were rife in his family. For some time he has been estranged from his father. He claims that his father's demands for money of him led to some of the crimes that saw him gaoled on an earlier occasion. He respects his mother as "the best." He left school after Year 10. He has trade qualifications as a fridge and air conditioner mechanic. He has been able to work most of his life.
3. For many years he has lived with his grandmother until he formed his new relationship about three years ago. He has used illicit drugs recreationally but when given an opportunity he did not engage in the Drug Court Program. He says, and it is consistent with all his offending behaviour, that he was using ice heavily at the time. I am prepared to accept that that drug impacted on his capacity to think logically but the use and abuse of illicit drugs can never excuse the commission of offences, let alone offences such as this, and is not of itself a mitigating factor. In fact the use and abuse of illicit drugs means that his behaviour was both illogical and dangerous.
4. Ms Durkin reports a history maintaining what she describes as "anti‑social cognitions" best illustrated by these offences and perhaps explains in some way his motivation to make his victims feel scared for the perceived attack on his partner. There is a pattern in his history of aggression and offending to get what he wants, he can be self-focused and act only with his own needs in mind without any consideration of the impact on his victims, his family or even himself.
5. In order to deal with his problems, Ms Durkin recommends that long term interventions are required because those interventions will be dealing with entrenched and anti‑social personality traits. She recommends engagement in the violent offender treatment program, continued engagement in the EQUIPS program and the SMART recovery program and on release attendance at Narcotics Anonymous.
6. It is clear from the certificates that have been produced that he has been using his time in custody to advantage. His letter makes no excuses for his anger, he has accepted responsibility for his offending, he offers his apology but I do not expect the Greens' to accept it. He wrote to me and said he realises how lucky it was that no one was physically hurt. He has asked for forgiveness and seeks to ensure them and the community he will not reoffend. He speaks of his regret that his actions have caused harm to his partner and her son and he realises now what he has lost. So far as remorse is concerned the expressions of remorse have to be taken into account, but in the light of what fell from Ms Durkin, cannot be given significant weight.
7. Expressions of regret I am prepared to accept, it is part of the process of punishment that a person is removed from their family and removed from their responsibility and I am sure that he feels the loss deeply. A matter I will refer to later. While the material received from Ms Durkin was not supported by evidence on oath and I have to be careful accepting reports at face value: see R v JDX [2017] NSWCCA 9. The history put forward was not going as evidence to my assessment of the objective circumstances of this crime and what was set out by Ms Durkin and the history given accords with other evidence. It does enable me to have some understanding of how Sharp came to commit his crime and for some understanding of the man now to be sentenced. The subjective material accords with other material and can be accepted.

Remorse

1. The bare fact of a plea is of itself a very simple expression of remorse. Much greater weight can be accorded to conduct and statements over a period of time which confirm a position of genuine and deeply felt contrition: Thompson (2000) 49 NSWLR 383; (2000) 115 A Crim R 104, at [118]. Here Sharp's untested out of court statements made to third parties or in his letter must be treated with considerable caution and circumspection. A letter can express sentiments, which are easy to make and impossible to test.
2. I place much greater weight on Ms Durkin's professional opinions, particularly her opinion that he still exhibits traits of anti‑sociality which need to be addressed by long term treatment. They provide a reason for a finding of special circumstances.
3. Evidence came from his elderly grandmother, she is ill and vulnerable to respiratory infections. He used to reside with her and provide her with care and support. He is unable to do so. The support he used to give cannot be so readily given by others in the family. No visits are allowed and he can take no care of her. In her letter, she pleads that he be allowed to return home soon.
4. While each case of family hardship is dependent on the seriousness of the crime given the seriousness of this offence, the need for appropriate and adequate punishment, retribution, specific deterrence and the impact of the sentence upon others, the hardship to his grandmother has to be treated as an unavoidable consequence of the custodial sentence that must be imposed. It is not in the highly truly exceptional category that requires to be taken into account as a mitigating situation to any significant degree but that said it must be synthesised along with all other factors.
5. I am aware that he will feel strongly the harm that his actions have brought about to his grandmother and feel strongly, particularly in the current climate, that he cannot provide appropriate assistance to her.

COVID-19

1. Which leads me to the COVID‑19 factors that have to be taken into account. The present crisis, as of today, is such that it must increase 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. Social visits have been suspended for an indefinite period although I am told access to telephone calls has been increased. Prisoners are completely reliant on the authorities who have complete control over their lives. These concerns and considerations apply to every prisoner sentenced.
2. I am sentencing today based on current knowledge and the responses advised by Corrective Services on their web page. If and I should say when COVID‑19 enters gaols, early parole may be given to some prisoners: s 276 Crimes (Administration of Sentences) Act 1999. Nothing about the offender creates any particular risk that he falls into the category that might be considered for early parole. I cannot predict what will happen but the lack of visits reducing any capacity to remain in contact with pro‑social friends and family and the heightened anxiety and concerns are relevant factors that must be synthesised along with all other relevant matters.

Section 23

1. There is material before me that engages s 23 of the Crimes (Sentencing Procedure) Act. It was valuable but limited to two specific instances. In one case it was significant as a consequence a lesser penalty is required. That lesser penalty, however, cannot be unreasonably disproportionate to the nature and circumstances of the offence. I will allow a ten per cent reduction in the otherwise appropriate sentence for that assistance.

Structure of the sentence

1. The offender has been in custody since 2 April 2019. He received a sentence of six months in the Local Court for a variety of matters. There must be some independent punishment for those offences, although I note that because he was bail refused for this matter alternative sentencing options were not available to the Magistrate. The offences also coincided with a period of custody for a breach of a bond but as I have already taken that matter into account in aggravation of sentence I will not double count it.
2. There are two Commonwealth offences, they are related to and part of the course of inherently conduct engaged in by this offender. There must be some modest additional punishment for those matters. I will fix terms and then commence the sentence after a small period of those concurrent terms being served. In fixing those terms I have taken into account the slightly different sentencing principles that apply to Commonwealth offences in both s 16A and s 17 of the Crimes Act 1914 (Cth). The utilitarian value of the plea must also be accommodated by an appropriate reduction of 25% in the otherwise appropriate sentences as too should the assistance: Xiao v R [2018] NSWCCA 4.
3. Fixed sentences are imposed because they will be subsumed by the aggregate sentence for the state offences. While each count for sentence involved discreet acts of criminality they did form part of a single episode with common factors. The purposes of sentencing apply to each and those purposes are overlap. Each offence however, had its own separate criminality, which requires some discrimination between them.
4. The device was not just made it was used. The calls formed part of an escalating series of acts and they continued after the event. They were all designed to cause increasing psychological harm. The sentences should be partially cumulative however the aggregation of all the sentences including those imposed in the Local Court must always be a just and appropriate measure of the total criminality involved.

Special circumstances

1. Ms Durkin identifies the offender's need for psychological treatment and assistance both in custody and particularly on release in dealing with; his drug problems, his anger and other emotional problems and his need, after a long period in custody, for help adjusting to normal community life. They all provide a basis for a finding of special circumstances. In so finding I am mindful of a requirement that the minimum period that must be imposed most properly reflect the gravity of his offences and the other purposes of sentences: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].
2. It is important to note that studies from the Bureau of Crime Statistics indicate that on release those prisoners who are given parole and subject to parole conditions are less likely to offend and commit fewer offences if they do offend than those who are released unconditionally: 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

Submissions

1. I am indebted to Mr Coulton, Solicitor Advocate for the Director of Public Prosecutions and Mr Fraser, Public Defender for their comprehensive written and oral submissions. We have discussed those submissions prior to this ex‑tempore judgment. I hope this judgment does justice to them. Although I have referred to only some aspects of the submissions they have informed this judgment and my determination of the appropriate sentences.

Synthesis

1. Regardless of any reason or motivation advanced by Sharp for his criminal acts, he committed a series of serious crimes against two fellow citizens. Where citizens are targeted it can have a terrible impact on them, as the Victim Impact Statement made clear. Such crimes, particularly when they occur outside or in family homes in suburban areas can have more serious consequences. While individuals are targeted the community in general can lose confidence in public institutions such as the police force. Individuals and members of the community can feel they are not safe; they fear that the police cannot protect them. By such actions the legal system is diminished.
2. Victims and the community can learn to fear others and lose trust in others. When people are fearful the entire community suffers. As a consequence we lose freedoms we do have to participate in community activities. Where criminals such as Sharp are caught having committed such offences the community can lose trust in the Courts if they do not punish such crimes appropriately but severely.
3. Courts have an obligation to vindicate the dignity of each victim, to express the communities disapproval of the offending and to afford such protection as can be afforded to the vulnerable against repetition of the offending. Further one of the historic functions of the criminal law has been to discourage anyone in the community from resorting to self-help, because all that does is lead to a consequent escalation of violent vendettas between members of the community: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600:

Orders

1. So far as all matters are concerned I have taken into account the principles I have set out, clearly the principle of totality and given full weight to the plea of guilty and the s 23 factors - a total reduction of 35% in each sentence or indicated sentence. I have taken care that the process of accumulation does not erode that benefit.
2. In relation to both Commonwealth matters there will be fixed terms of eight months imprisonment. Those sentences will commence on 2 May 2019.
3. In relation to the manufacture military style weapon I indicate a sentence of two years and seven months.
4. In relation to the use prohibited weapon offence I indicate a sentence of four years and three months with a non-parole period of two years and nine months.
5. The aggregate NSW sentence will start on 2 June 2019. That sentence is one of five years imprisonment. There is a non-parole period of three years. On 1 June 2022 the offender will be eligible for consideration for release to parole There is a parole period of two years.
6. The offender went into custody in April 2019. I have allowed one month for the Local Court matters. The commencement date of the Commonwealth sentences is 2 May 2019. The commencement date of the five year aggregate sentence is be 2 June 2019. The finding reflects a finding of special circumstances which also includes of course the aggregation factor.
7. I give the prosecution liberty to make a Victims Compensation order within 28 days if such order is required and I will deal with the matter in chambers if necessary. Are there any other orders that you seek Mr Coulton? COULTON: No your Honour. OFFENDER: What did I get sentenced to? HIS HONOUR: The effective sentence Mr Sharp, taking into account all your time in custody, is five years and one month imprisonment. OFFENDER: On the top? HIS HONOUR: On the top, the effective time in custody going back to 2 April is three years and two months with a parole period of two years. OFFENDER: So do I have serve so three on the bottom and two on the top. HIS HONOUR: Three on the bottom, two on the top. OFFENDER: Really? HIS HONOUR: But the effective time in custody, time served‑‑ OFFENDER: Is three years two months. HIS HONOUR: Is three years two months. OFFENDER: For real? HIS HONOUR: For real. I do not think you even now you appreciate how serious an offence it was.

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: 04 May 2020