Ground 3: His Honour gave inadequate weight to the applicant's subjective case.
29 In dealing with this ground, I should first summarise the subjective case presented on behalf of the applicant. Mr Sproates gave evidence, as did his mother. A report was tendered from the Probation and Parole Service and another from Ms Seidler, the psychologist.
30 Mr Sproates is Aboriginal. He is one of seven children. Both parents were heavy drinkers and he was brought up in an atmosphere of domestic violence. His parents separated when he was about eleven years old. He went to live with his father for a time. However, he caught chicken pox after nine months. Without reference to him, his father determined that he should be returned to his mother. He remained angry at his father thereafter and did not speak to him for eight years. His relationship with his father, incidentally, has since been repaired and is regarded as important. The Probation and Parole report said this:
"Both parents confirmed the offender's restored relationship with his father, and concurred with the offender's view that the support of his father is pivotal to his success when released from custody."
31 Mrs Sproates was still drinking alcohol to excess when her son returned to live with her. She acknowledged in her evidence that her parenting left something to be desired (T 24: 19.3.08). The family lived in poverty.
32 Mr Sproates left school in Year 10 without having completed that year. He enrolled in several TAFE courses, one in welding and another in Aboriginal arts and culture, but failed to complete either. The Probation and Parole report described his life after he left school in these terms:
" ... [he] descended into a lifestyle characterised by chaos, drug abuse and associations with other disconnected young people. Conflict fuelled by substance abuse seemed to be a recurring theme throughout Mr Sproates life involving his family and associates.
The offender said that these lifestyle issues seriously impeded his ability to secure and maintain stable employment. As a result, the offender said, he has a poor employment history, apart from short term sporadic labouring positions."
33 The applicant began using cannabis at the age of 13 years. He rapidly became a heavy and habitual user. At the same time he drank alcohol to excess. As he got older he experimented with other drugs. The Probation and Parole report included these words:
"In the six months leading up to the offences currently before the Court, Mr Sproates said he was regularly smoking crystal methamphetamine in cannabis to the extent of approximately $200 to $300 worth between Wednesday and Sunday of each week. In addition to his illicit drug use, he said, the offender drank alcohol heavily in company with his friends, to the extent of approximately one carton each on each occasion. At this point, Mr Sproates said, he was abusing illicit drugs and alcohol to the full extent to which his means would allow."
34 Mr Sproates' family noticed the effect upon him, which the Probation and Parole report described as follows:
"The offender's family members described the offender's violent offence as uncharacteristic of him, however had noticed changes in him in the months leading up to the offences, particularly if drugs were unavailable to him, when he would become withdrawn and aggressive.
When asked about this, Mr Sproates said that he was inclined to be volatile when he was withdrawing from cannabis more so than other substances. Having been drug free since coming into custody, he said, he has found himself able to sleep and function at a level unfamiliar to him for several years, and is resolved to avoid relapse at all costs."
35 The applicant's mother, when giving evidence before the sentencing Judge, said that in the period leading up to the shooting she had noticed changes in her son, which she associated with drugs (T 25). She said that her son was not aggressive, but she could tell that he was angry (T 25). The account given by Mr Sproates to Ms Seidler concerning his alcohol consumption and drug taking was broadly the same (Ms Seidler [20]-[25]).
36 Ms Seidler performed various tests and ultimately assessed Mr Sproates as a young man functioning below the average range intellectually. She believed that he suffered from depression and anxiety as a result of a fight some years earlier. She said this:
"[28] Psychological Assessment: Mr Sproates reported that around the age of 23 years, he and his brother were physically assaulted in a bar fight. Although he was not seriously injured in this incident, Mr Sproates claimed that he became depressed and despondent afterwards, in addition to experiencing elevated levels of anxiety about his personal safety and the motives of others. He stated that this precipitated his being in possession of a firearm after that time. In the context of this alleged depression, Mr Sproates endorsed symptoms of low mood, lethargy, hypersomnia, social withdrawal and reduced appetite. He stated that these symptoms persisted for some time, as a result of which Mr Sproates increased his drug use ... "
37 His Honour described Mr Sproates' criminal record as "not extensive". In 2003, he was ordered to perform community service as a result of obtaining money by deception. Following a breach, the order was converted to a term of periodic detention for six months. In 2004, Mr Sproates was convicted of cultivate prohibited plant, possess prohibited drug and goods in custody. He was placed on a s 9 bond to be of good behaviour for eighteen months.
38 His Honour accepted that Mr Sproates was remorseful (ROS 10). He had handed himself in to the police. He said he was shocked by what he had done. His mother said that he asked to see the Victim Impact Statement and would frequently ask how Mr Staff was (T 26) (ROS 12).
39 Once in custody, Mr Sproates had been placed in protection because of threats made against him. His Honour considered the circumstances of incarceration and concluded the protection "will have a very limited impact" on what he considered the appropriate penalty (ROS 12). He allowed a 25 percent discount for an early plea of guilty. His Honour found special circumstances to assist in Mr Sproates' rehabilitation and because it was his first time in custody.
40 His Honour did not expressly deal with the issue of rehabilitation, although it may be accepted that Mr Sproates' prospects were reasonable. He appeared to have insight into the adverse effect upon him of drugs and alcohol. He had resolved to avoid both upon release (Ms Seidler [25]). The Probation and Parole Service said this:
"Mr Sproates is a young man who, having participated in the unfettered abuse of alcohol and illicit drugs from an early age, found himself in a situation in which he was highly intoxicated, paranoid, in possession of a firearm, and in a situation of conflict.
Having come to an understanding of these factors, Mr Sproates found it unsurprising that the events of the evening unfolded as they did. He took full responsibility for the offences in terms of his level of intoxication, drug use and resultant paranoia, and having possession of the firearm.
Having been entirely frank and straightforward throughout the interview process, Mr Sproates concluded that his ability to recover a law abiding lifestyle and healthy relationships with his family lies in his ability to remain abstinent from alcohol and illicit drugs.
The offender's family were united in their support of the offender, and were similarly united in their condemnation of his drug use and previous lifestyle."
41 Counsel for the applicant, on this appeal, described the subjective case as "compelling". The maximum penalty was 25 years. His Honour's starting point, to reach an aggregate sentence of 12 years (allowing a 25 percent discount for the plea of guilty), was 16 years. In these circumstances, the following submission was made: (Applicant's subs [20])
"[20] If proper weight was given to these matters it is difficult to see how it could be that, at the last point before reduction for the utilitarian value of the plea, the head sentence was 16 years."
42 The Crown responded by submitting that the subjective case was "not particularly compelling". There was no reason to believe that his Honour overlooked any aspect of it. He had placed the offence "towards the upper end of the range, just short of the worst category" (ROS 7). The subjective material operated to ameliorate the sentence that might otherwise have been imposed.
43 Further, the Crown drew attention to the structure of s 33, where the maximum penalty was 25 years with a standard non parole period of 7 years. Commenting upon that section, McClellan CJ at CL in Anderson v Regina [2008] NSWCCA 211, said this: (at [17])
"By providing a standard non-parole period of 7 years but a maximum penalty of 25 years imprisonment it is apparent that the Legislature had in mind that for offences falling above the middle range the penalty should increase by a greater amount for increasing degrees of seriousness than is the case for offences falling below the middle range. By this structure the Legislature has indicated that the punishment for offences at the higher end of the range of seriousness must be proportionately greater when compared with the maximum penalty than offences falling toward the lower end of the range."
44 Dealing with these submissions, it may be accepted that there was a strong subjective case. The evidence was set out at length in his Honour's remarks. There is no reason to doubt that the subjective case was carefully considered. However, the subjective case had to be evaluated in the context of the offending conduct and the consequences for the victim.
45 Mr Sproates gave evidence before the sentencing Judge that he had set out for the club, with his sisters, at about 7.00 or 8.00pm. He had taken the drug "ice" beforehand. He said this: (T 12: 19.3.08)
"Q. How long before you went out had you used the ice that evening?
A. Through that day and that afternoon.'
46 He was then asked the following: (T 12/13)
"Q. How does ice make you feel Mr Sproates?
A. Paranoid really.
Q. On this evening were you paranoid?
A. Just edgy.
Q. When you say you're paranoid what are you paranoid about?
A. Just like, just getting into fights, things like that, that's about it.
Q. Getting in a fight?
A. Yeah.
HIS HONOUR: Q: What, that is if you're affected you'd be inclined to involve yourself in a fight more easily because you're affected by it, is that what you mean?
A. No, that's not what I mean, I just want to stay out of trouble.
Q. Well your counsel asked you how did it make you feel and you said, 'paranoid or edgy'?
A. Yeah.
O'REILLY: Q: So do you think something is going to happen to you when you're on ice?
A. Yeah."
47 Once at the club, Mr Sproates drank schooners and one or two Sambucas (T 12). He went home at midnight to get more money so that he could continue drinking (T 11). He then returned to the club. The incident occurred shortly after 3.00am. When interviewed by the police the day after the shooting, Mr Sproates said this:
"A161 Yeah, I was bloody pretty pissed.
Q162 All right. On a scale of things, how would, when you say you were pretty pissed, how, how pissed would you say you were?
A Like, I don't know what bloody, the Sambucas too, because, I don't know, bloody, I can still walk straight and stuff but I'm just bloody pissed ... "
48 In the same interview, Mr Sproates was asked about the gun. He said that when he took it from home it was already loaded (Q66). He was then asked the following:
"Q68 All right. Whereabouts had you got the gun from?
A Don't wanna - that I can't answer.
Q69 Why is that?
A I just don't want to say.
Q70 OK. When had you got the gun?
A Probably, it's been a fair while actually.
Q71 So, are we talking weeks or days or - ?
A Probably a couple of years.
Q72 So, what was the purpose in having that gun on you last night, sorry, night before last?
A Protection.
Q73 Have you been carrying it for protection for some time?
A Yes.
Q74 And protection against whom?
A I'm not quire sure who they are. Bloody me and me brother got bashed at the Unanderra Pub about nearly a, I don't know, might have been probably nearly, yeah, probably two years now, and ever since that then whoever, because I, I was really pissed that night too and I wasn't really sure who they, like, who they was and that and them same people have been hassling me ever since.
Q75 Who are these people?
A There's only one, one bloke I, like, sort of recognise and that from the pub and that was, I don't know, I just know his first name's Steve."
49 Mr Sproates said that as a result of the fight he had bruising. He did not seek medical attention (Q 85). Nor did he report it to the police (Q 83).
50 Having been arrested and placed in custody, Mr Sproates was interviewed by the Probation and Parole Service for the purposes of preparing their report (dated 14 September 2007). The report included a somewhat different account in relation to the gun: (p 4)
"When asked how he came to be in possession of the firearm, Mr Sproates said that he obtained it from a criminal associate approximately two years previously for self protection at a time when he was fearful of his safety. When asked to explain what he was thinking about at the time, Mr Sproates said he had developed enemies through his participation in the drug sub-culture when previously residing in the area, and he obtained the firearm at a time when his drug related paranoia was escalating.
As his poly drug abuse became more entrenched, Mr Sproates said, he became increasingly paranoid about his safety and formed the habit of carrying his firearm with him on most occasions when he left his residence."
51 The report continued: (p 4)
"When asked what he had thought about since his arrest, Mr Sproates said that he found his current predicament to be an unsurprising culmination of criminal associations, rampant substance abuse and drug related paranoia."
52 His Honour found that the offence had been aggravated by the fact that a gun had been used (s 21A(2)(c)). He also found it involved a grave risk of death (s 21A(2)(ib)). The offence was the more serious because of the devastating consequences for the victim. In R v Mitchell & Gallagher [2007] NSWCCA 296, Howie J said this:
"[27] A very important aspect of an offence under s 33 is the result of the offender's conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence, after all that is the element that makes the offender liable to a maximum penalty of 25 years as opposed to 7 years for a s 35 offence. But there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence than there is for variation in the nature of the injury inflicted. It should be borne in mind that, if the victim had died, the respondents would have faced a charge of murder. The injury suffered by the victim was, as her Honour noted, little short of death."
53 Counsel for the applicant acknowledged the difficulty in relying upon drugs or alcohol as a matter in mitigation, referring to R v Coleman (1990) 47 A Crim R 306, per Hunt J at 327 and R v Henry (1999) 46 NSWLR 346 at 397/8, [273]-[274]. In R v Coleman, Hunt J said this: (at 327 )
" ... The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character. (I have not intended by those examples to limit the extent to which intoxication may be taken into account; see, generally, Sewell and Walsh (1981) 29 SASR 12 at 14-15; 5 A Crim R 204 at 207.) Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate.
But that is not this case. The only evidence is that the appellant had been an alcoholic over a long period of time. At the same time, however, it is clear from the appellant's record and from the medical evidence led that the violence which he exhibited on this occasion was sadly not out of character. In all of those circumstances, in reassessing the appropriate sentence to be imposed I would not place much weight upon the appellant's intoxication in mitigation, but I would not take into account in aggravation."
54 The applicant asserted, in submissions, that the circumstances which led Mr Sproates to carry a gun, in combination with the drug ice which made him "paranoid and edgy", affected his culpability such that there had been error. I disagree. Even accepting, as his Honour did, the explanation in respect of the gun, it did not operate to mitigate significantly the offence. Mr Sproates had gone to the club with a loaded gun in his waistband. The gun was capable of firing multiple bullets. He had a long history of drinking to excess. He ingested drugs during the course of the evening, which he knew made him paranoid and edgy. When involved in an altercation inside the club, he made threatening remarks on two occasions suggesting that those with whom he disagreed "needed a bullet in their heads". After his exchange of words with Mr Staff, he had approached the victim outside the club when he was sitting on a bench waiting for a taxi. He had withdrawn a loaded pistol from his waistband and pointed it at Mr Staff when at close range. Ultimately, having returned to his friend's car, he had fired not one, but three bullets, one of which struck the victim. Whilst it was incautious of the victim to follow him and engage with him, his Honour found, appropriately, that there had not been provocation in law. No doubt the three shots represented an escalation in the level of his aggression exhibited that evening, but they cannot be considered to have been out of character. Objectively, the offence remained very serious, as characterised by his Honour.
55 Returning to the asserted error in Ground 3, his Honour did not, in my view, give inadequate weight to the applicant's subjective case.
56 I would dismiss Ground 3.