Sproates v Regina

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

R v Way (2004) 60 NSWLR 168 Anderson v Regina [2008] NSWCCA 211 CASES CITED : Mitchell & Gallagher [2007] NSWCCA 296 R v Coleman (1990) 47 A Crim R 306 R v Henry (1999) 46 NSWLR 346

PARTIES: Brendan Sproates (Appl) Regina (Resp/Crown)

COUNSEL: T Game SC (Appl) N Norman (Resp/Crown)

SOLICITORS: S O'Connor - LAC (Appl) S Kavanagh - DPP (Resp/Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/9350

GROVE J BLANCH J KIRBY J

Monday 23 February 2009 Brendan SPROATES v REGINA Judgment 1 GROVE J: I agree with Kirby J. 2 BLANCH J: I agree with Kirby J. 3 KIRBY J: Application is made by Brendan Sproates for leave to appeal against his sentence. Mr Sproates surrendered himself to the Moruya Police Station on 3 July 2006 and was arrested. He acknowledged his involvement in a shooting at the Wests Leagues Club, Unanderra, in the early hours of 2 July 2006, when a patron of the club, Shane Staff, received serious injuries. 4 Mr Sproates was charged with maliciously inflicting grievous bodily harm with intent to do grievous bodily harm (contrary to s 33 Crimes Act 1900) (maximum penalty: 25 years imprisonment with a standard non parole period of 7 years). He pleaded guilty. On 3 April 2008, Conlon DCJ sentenced Mr Sproates to imprisonment for 12 years, consisting of a non parole period of 8 years (3.7.06 to 2.7.14) and an additional term of 4 years (3.7.14 to 2.7.18). 5 Before setting out the grounds of appeal, I should describe the circumstances in which the offence was committed and the serious consequences for the victim. The incident. 6 A number of documents were tendered at the sentencing hearing, relevant to the way in which the incident occurred. There was an agreed statement of facts, as well as the record of interview conducted by the police with Mr Sproates the day after the incident. The account provided by Mr Sproates in that interview was incomplete and, in a number of respects, plainly wrong. The remarks of the sentencing Judge largely incorporated the statement of facts. 7 Both the victim and Mr Sproates attended the Wests Leagues Club on the evening of 1 July 2006. The victim was alone. Mr Sproates was with his two sisters, celebrating his birthday, which was the next day. He was about to turn 25 years old. Mr Staff was a few years older. They did not know each other. Shortly after 3.00am an incident occurred in which two male patrons began fighting. His Honour described what then took place, in these words: (ROS1/2) " ... The altercation was diffused by security personnel. The offender was nearby when that altercation took place but was not directly involved. The offender became agitated and remonstrated with security personnel at which time he was heard to say, 'Blokes like you deserve a bullet in the head', and 'They were being racist, I'm going to put a bullet in your head'. These comments were made towards one of the males involved in the altercation. The victim, Shane Staff, was also in the area at the time of the altercation but was not involved. The offender was directed by security personnel to leave the premises, he initially ignored the direction and returned to the company of a male friend. Security personnel escorted the offender and the friend from the premises. As the offender and his friend were being escorted through the foyer of the premises toward the front door, the offender continued to argue with and goad security personnel. ... " 8 There followed the first interaction between Mr Sproates and the victim, Mr Staff. His Honour said this: (ROS 2) " ... As they walked past the entrance to the poker machine area Shane Staff approached the offender and said words to the effect of 'Fucking leave him alone, he's a mate leave him alone'. This comment related to the offender arguing with security personnel. ... " 9 His Honour described what followed: (ROS 2) " ... Shane Staff walked to the foyer of the premises, used a telephone and requested a taxi. The man, Staff, exited the premises via the front doors, walked across the driveway outside and sat down on a bench seat. As the offender was escorted through the foyer he received a call on his mobile phone, he was heard to say, 'You're out the front, yeah, no worries I'm coming out now'. Upon leaving the club the offender drew a black coloured pistol from the waistband of his pants and approached Staff who was still sitting on the bench seat. A verbal altercation took place between Sproates and Shane Staff and the offender pointed the pistol at him. The man Staff pushed the offender's hand that was holding the gun away from him. The offender and his friend walked off into the carpark to a maroon Mitsubishi Magna ... that was being driven by another male friend. ... " 10 The events culminating in the shooting were described in these words: (ROS 2/3) " ... Staff stood up and followed the offender. Staff waved his hands in the air and looked towards the security personnel at the front doors of the club. Staff then turned and walked towards the vehicle. Staff yelled words to the effect of, 'If you're going to shoot me then shoot me'. While saying this he had his hands outstretched from his body. The offender walked to that vehicle, ... turned and pointed the pistol towards Staff and fired at least one shot in Staff's direction. Staff yelled, 'You fuckwit', and continued to walk towards the offender. The offender fired at least two further shots in the direction of Staff one of which struck Staff in the abdomen causing him to fall to the ground. The offender entered the front passenger seat of the vehicle which was being driven by the male friend." 11 Mr Sproates was driven home by his friend. After he had been dropped off, the vehicle was stopped by the police, because of the manner in which it was being driven. The police had meanwhile identified the vehicle as having been involved in the shooting. It was therefore searched and a .22 calibre bullet casing was found. Later the police also located a further two .22 calibre cartridges at the carpark, as well as two unfired .22 calibre bullets. Mr Sproates, when interviewed, told the police that, on the journey home, he had thrown the weapon away, although he could not remember where (Q 309-310). 12 There were surveillance cameras at the club. His Honour described still photographs taken from the footage, and tendered in evidence, in these words: (ROS 4/5) "The last five photographs in exhibit B were taken via CCTV and they showed the offender leaving the club with an associate. The last of those photographs shows the offender outside the club with gun in hand, arm outstretched, obviously pointing it at the victim."

Injuries to the victim. 13 The consequences for Mr Staff were severe. He was taken by ambulance to the Wollongong hospital and admitted to the Intensive Care ward. A bullet had entered the left side of his abdomen near the junction of the chest and the abdomen. It passed downwards to the right and through the left side of the liver, the stomach and the pancreas. It stopped to the right of the spine, in the pancreas. 14 Emergency surgery was then undertaken to stop the internal bleeding. An exploratory laparotomy was performed and various organs repaired. However, the abdominal bleeding continued, so that a second exploratory laparotomy was undertaken the same day. Dr Michael Talbot, one of the surgeons, said this: (Report 16.4.07) "Mr Staff has certainly been very lucky to have got over his significant injuries. When I performed my operation on him to help control some of his bleeding, virtually every injury had been repaired but it was obvious that he had an injury to his abdominal wall, the left side of his liver, his stomach, his pancreas and some of his large abdominal vessels. It was only due to a fair dose of luck and extremely hard work by Dr Malouf that he is still alive I suspect." 15 Although Mr Staff survived, the consequences for him have been immense. They were described in his Victim's Impact Statement in these words: "Details of personal harm suffered as a direct result of the offence: Lost house, Lost job (I was working in the mines on a good wage and am now on Social Security benefits supporting my partner and a 2½ year old son). Lost good health, had had 17 major operations (chest, Internal Organs, Lost Gall Bladder & follow up operations on these). Relationship with partner, son, family members and friends have all been affected. There are new medical problems arising almost on a weekly basis. I have just undergone another two operations recently (in the space of a month) and am facing the possibility of further extensive and risky surgery. I had to learn to walk again after hospitalisation and the 17 major operations, I lost 26 kilograms in weight and gaining weight is an ongoing problem. I returned to the gym to build myself up, but because of the operations I have had to give that up and I don't know if I will ever work again. This in turn puts more strain on my relationship. I have been told by professionals that I experience many of the symptoms of Post Traumatic Stress Disorder in that I experience nightmares of the original incident and my many hospital stays. I experience social isolation and have fears about public places and public transport. My sleep pattern has been disturbed since the incident. I am in constant pain i.e. lower back pain, pain in the abdomen, chest and many other areas of my body. The impact of this incident has had a strong impact on my 2½ year old son. My son lost all speech after the incident seeing me in hospital so ill. I am now back driving my car and driving myself to the various appointments instead of depending on other family members and trying to get my life back on track and be as normal as possible given the circumstances."

The Notice of Appeal. 16 The notice of appeal contained the following grounds: Ground 1: The sentencing judge failed to assess properly the objective seriousness of the offending. Ground 2: The sentencing judge erred in his assessment of the significance of the applicant's drug and alcohol addiction, and its influence on his conduct at the time of the offence. Ground 3: His Honour gave inadequate weight to the applicant's subjective case." 17 I will consider each ground in turn.

Ground 1: The sentencing judge failed to assess properly the objective seriousness of the offending. 18 The first ground may be dealt with briefly. The remarks on sentence deal with a number of issues. Counsel for the applicant closely analysed the sequence of issues and the structure of his Honour's remarks. At one point his Honour dealt with matters of aggravation and matters of mitigation (s 21A Crimes (Sentencing Procedure) Act 1999) ("the Act") (ROS 6/7). His Honour introduced the next issue with the following words: (ROS 7) "I now turn to the subjective matters in respect of the offender ... " 19 His Honour thereafter dealt with the subjective matters, including the report of Ms Katie Seidler, a clinical and forensic psychologist. Ms Seidler's report described in some detail Mr Sproates' background, his drug taking and abuse of alcohol. She also dealt with issues relevant to the offence, including the circumstances in which Mr Sproates came to be in possession of the firearm which he used that evening. In that context, his Honour interpolated evidence relevant to that issue, saying this: (ROS 10/11) "The offender gave evidence in these proceedings. He referred to the incident in the hotel where he and his brother were attending a pool competition, this is the incident well before the present offence. He said that they were attacked by a group of about ten persons, he said he and his brother sustained injuries including bruising to the face area. He said this occurred about twelve months before the present offence and thereafter he said, 'I didn't feel the same, I felt down, I didn't go out that much after that'. He said that when he went out thereafter he was armed with the hand gun. He said he came into possession of that gun about eighteen months before the offence. On the night of the offence he said he had been drinking fairly steadily, drinking schooners and Sambucas. He said he was not falling down drunk but he did not have a full memory of the evening. He said his use of ice made him paranoid and edgy, it would make him think that something was going to happen to him. He said he could not remember holding the gun out as shown in the last photograph in exhibit B and he could not remember the victim slapping the gun away." 20 It was said on behalf of the applicant that this was an aspect relevant to the objective seriousness of the offence and yet was "dealt with as if it were itself a subjective matter". 21 However, I am not persuaded that it is reasonable to read his Honour's remarks in this way, when they are taken as a whole. To do so is to read altogether too much into the structure of the remarks. Ms Seidler dealt with a number of things, some relevant to the offence and others to the offender. In the context of her report, which his Honour quoted at length, he interpolated other evidence relating to the acquisition of the gun. He did so as a matter of convenience, gathering together Ms Seidler's comment on the issue and his own. But the subject matter was plainly connected to the offence and was not a subjective matter as his Honour well understood. 22 I believe there is no substance in Ground 1.

Ground 2: His Honour's assessment of intoxication and its significance. 23 It is convenient to repeat the formulation in the notice of appeal of the error said to have been made by the sentencing Judge. Ground 2, as expressed, was as follows: " The sentencing judge erred in his assessment of the significance of the applicant's drug and alcohol addiction, and its influence on his conduct at the time of the offence." 24 Attention was drawn to R v Way (2004) 60 NSWLR 168, where the Court emphasised that in characterising the objective gravity of the offence, the conduct of the offender and his state of mind are both important ([85]). The Court added: (at 186/7) "[86] Some of the relevant circumstances which can be said 'objectively' to affect the 'seriousness' of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence." 25 Here, counsel for the applicant, appearing at the sentencing hearing before Conlon DCJ, made the submission that it was a matter of mitigation that the offence was not planned (cf s 21A(3)(b) of the Act). His Honour responded to that submission with these words: (ROS 6) " ... I am of the view little weight can be attributed to this factor as the evidence was that the offender went to the club armed and had been carrying a gun in public for some time. ... " 26 It was conceded on this appeal that such a finding may well be legitimate (App's submission p5 [11]). Counsel for the applicant, however, added these words: "[11] However, it is not then logical to consider elsewhere in the remarks, as a 'purely subjective' matter, the reasons why the applicant carried a gun, a subject about which the applicant gave a compelling account in evidence and which can be taken to have been accepted by his Honour in his consideration of the 'subjective case'." 27 That submission repeats the argument in Ground 1, that his Honour dealt with this material as relevant to the subjective case. For the reasons given, I do not accept that submission. I believe his Honour was conscious of the importance of the applicant's state of mind in assessing the gravity of the offence and appreciated the relevance to that issue of his intoxication and the circumstances in which he was said to have come into possession of the gun. In the context of Ground 3 below, I will consider the significance of the applicant's drug and alcohol addiction. 28 I would dismiss Ground 2.

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.

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