Director of Public Prosecutions v Crockett
[2022] VCC 1021
•28 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-01305
CR-22-00305
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE CROCKETT |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22-25 and 28-30 March 2022 (Trial) | |
DATE OF SENTENCE: | 28 June 2022 | |
CASE MAY BE CITED AS: | DPP v Crockett | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1021 | |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW – Sentence.
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr R. Pirrie (Trial and Plea) | Office of Public Prosecutions |
| Ms D. Shivakumar (Sentence) | ||
| For the Accused | Mr R. Backwell | Sarah Pratt & Associates |
HIS HONOUR:
Introduction
1Jamie Crockett, at trial you were found guilty of intentionally causing serious injury.[1] The maximum penalty for that offence is 20 years’ imprisonment. This is a category 2 offence and as such, the court is required to impose an immediate term of imprisonment other than one imposed by way of a combination sentence, unless the court is satisfied that any of the statutory exceptions apply. Your counsel realistically did not seek to engage any of those exceptions in your case and acknowledged that this case ultimately called for a head sentence with a non-parole period.
[1] Charge 1 on indictment J13060768.A.
2You also fall to be sentenced for a separate and unrelated offence of prohibited person possess firearm, to which you have pleaded guilty.[2] The maximum penalty for that offence is 10 years’ imprisonment.
Intentionally cause serious injury
[2] Charge 1 on indictment J13060768.B1.
3The circumstances in which you committed the offence of intentionally cause serious injury were ventilated at trial. The real issue was that of the identity of the gunman. The prosecution alleged that you were the gunman who shot the victim. Consistent with what had been foreshadowed in the defence response, that assertion was challenged by you through your counsel.
4I must give due regard to the jury’s verdict which clearly indicates that they were satisfied to the criminal standard that you were the gunman and further, that at the time of discharging the firearm, you intended to cause serious injury to the victim who suffered a life threatening injury.
5In light of the jury’s verdict and the evidence called at your trial, I am satisfied of the following matters.
6Shortly before 6 am on the morning of 14 November 2018, you were seated in the driver’s seat of a stationary Mercedes in a suburban street in Cranbourne when the victim Bruno Schwalger, also known as Bruno Tangi, arrived in a Holden Astra being driven by his friend, Damien Woolley. As Mr Tangi exited the vehicle and commenced to approach the front of your vehicle, you drove forward a short distance intimating that you may run him over. Mr Tangi then walked to the front driver’s side door of the Mercedes and appeared to converse with you for some few seconds through an open window. Things then escalated and Mr Tangi can be seen, on the relevant CCTV footage, to reach into the vehicle and engage in some type of a brief physical confrontation with you. He then took a step back from the vehicle. At that point, although it is not clearly shown on the footage, you pointed and then discharged a firearm at Mr Tangi at point blank range. The single projectile from that firearm hit him in the upper left thigh and passed all the way through his leg, transecting the superficial femoral artery and superficial femoral vein in the process.
7To some degree, these events and their immediate aftermath were captured by CCTV cameras located in the area, although the cameras were not proximate to the scene and the footage is not entirely clear.
8After being shot, Mr Tangi can be seen to hop on one leg and then escape on foot to his house located nearby. At one point, you drove the Mercedes in pursuit of him before ultimately driving away from the scene.
9By the time an ambulance arrived, Mr Tangi had already lost a significant amount of blood. He went into hypovolemic shock and required urgent infusions of saline solution enroute to and on arrival at the hospital to temporarily increase his blood volume. The duty surgeon at the hospital, Dr Martin, gave evidence that such treatment was necessary to prevent the patient’s shock worsening as that could have led to an even lower blood pressure which in turn could have resulted in the patient suffering cardiac arrest due to the heart muscle not receiving a sufficient blood supply. Mr Tangi underwent surgery under general anaesthetic to repair the injury. Dr Martin also gave evidence that without such surgical intervention, the bullet injury sustained by Mr Tangi would have been life threatening.
10The victim’s immediate post operative treatment included a tetanus vaccination, antibiotics to prevent infection and anticoagulants (blood thinners) to prevent clot formation. Dr Martin also explained that this type of injury is a very painful one. No doubt due to that fact and the nature of the surgery the victim underwent, he received immediate analgesia from the paramedics and further pain relief medication during his inpatient stay at hospital. On 16 November, he self-discharged from hospital against medical advice. He did not attend any follow up medical appointments.
11Mr Tangi was a problematic witness for the prosecution. At trial, he claimed that someone other than Mr Crockett shot him. During examination in chief, the prosecution made a successful application to have him declared an unfavourable witness and were granted leave to cross-examine him.
12In due course, police were called to give the following evidence. They attended on Mr Tangi at hospital shortly after 11 am on 15 November 2018. In an initial conversation, he told them that he had been on his way home with a friend when he was approached by a person he knew as Jamie Crockett who was waiting in a Mercedes in his street. They had a conversation which then escalated and ended up with Mr Crockett shooting him in the leg. A sworn handwritten statement was taken from him a short time later in which he gave a similar account. However, in his evidence at trial, Mr Tangi claimed to have no memory of making that statement or of telling police those things. When asked to comment on the appearance of the signature on the police statement, he equivocated somewhat, saying the ‘B’ looks like his normal signature but the rest does not. He went further and claimed that he did not even know anyone named Jamie Crockett, only someone called Jamie Cracker.
13He was then reminded that at the committal hearing he had been asked whether he knew Jamie Crockett and had answered, ‘Yes, he was a friend'. Mr Tangi then acknowledged that he had said that and it was true. However, he went on to claim that he had not seen Mr Crockett on the morning in question and that the man who had shot him was unknown to him and had tattoos all over his face.[3] In describing the confrontation in which he was shot, Mr Tangi appeared to paint himself as the aggressor and in a way that does not appear to be confirmed by the CCTV footage. For example, he said '… I had eye contact then rushed to the car … and just started throwing punches'. And, at one point, he seemed to put a different complexion on how the firearm came to be discharged, saying '… [W]e just wrestled and … he pulled a gun out and we wrestled and the gun went off'.
[3] By contrast, Mr Crockett has no such tattoos.
14No doubt the jury scrutinised the evidence of Mr Tangi very carefully. However, in the end, they were satisfied that Mr Crockett was the man who shot Mr Tangi from the driver’s seat of the Mercedes. There were other pieces of evidence in the prosecution case which suggested that Mr Crockett was indeed in the relevant area in the lead up to the shooting and that he was interested in meeting Mr Tangi that morning. For example, Mr Woolley gave evidence that a man who he believed was connected with the Mercedes had, a short time before the shooting, asked him where ‘Nos’[4] was and referred to himself by name as ‘Jamie’. Further, the SIM card that had been used to communicate with Mr Tangi and set up the meeting on the morning in question had been used in the very mobile phone that was located in Mr Crockett’s possession eight days later, on 22 November.
[4] A nickname for Mr Tangi.
15Having seen and heard all of the evidence, it is clear to me that Mr Tangi did his best at trial to sabotage his earlier identification of Mr Crockett as the shooter and to paint himself as the aggressor and the shooting as possibly accidental. But, there were a number of very implausible aspects to his account, both in relation to his dealings with the police at hospital and in relation to the circumstances surrounding and involving the shooting itself. In respect of the latter, his account does not seem to be supported by the incontrovertible evidence provided by the relevant CCTV footage
16In the end, it is unsurprising that the jury saw through those attempts.
17That said, however, I do not draw any adverse inference against Mr Crockett on account of the approach that Mr Tangi took. After all, Mr Tangi would be well aware of the view that others within the criminal world take in relation to cooperating with the authorities and to giving evidence for the prosecution.
18But, on account of the stance taken by Mr Tangi at trial and the legitimate exercise by Mr Crockett of his legal rights to refuse to answer police questions when interviewed and to not giving evidence at trial, there is much about this offence that is not and cannot be known.
19For example, other than there being some sort of a disagreement between the two men, which quickly escalated into a struggle, the motivation for the shooting is clouded in mystery. It was not suggested that it was undertaken in self-defence and nor could it have been. The CCTV footage does not back up Mr Tangi’s implied suggestion that the firearm may have been accidentally discharged in the course of a struggle. In the end, all the court is left with is the fact that Mr Crockett was keen to meet up with Mr Tangi that morning. The speed at which the meeting descended into an argument and a struggle strongly suggests that there was some simmering ill will between the two men but fails to illuminate the reason or reasons for it.
20It is clear, however, that Mr Crockett attended this meeting while armed with a loaded and shortened firearm.[5] Whilst I am prepared to conclude that Mr Crockett was angry and willing to confront Mr Tangi at that meeting, and to produce the firearm if necessary, I cannot find to the criminal standard that his decision to actually shoot the victim was a premeditated one formed before attending that meeting. Rather, the state of the evidence, such as it is, would suggest that it was discharged in the context of a rapidly unfolding and volatile meeting between the two men. That said, it was a gross over reaction to what was occurring. To have deliberately shot an unarmed man in a public street in full view of at least one other person, namely Mr Woolley, is a very serious thing to have done, about which I will say more later.
Prohibited person possess firearm
[5] Estimated by Mr Woolley to be about 40cm in length.
21Mr Crockett, the circumstances in which you were found in possession of the other firearm are set out in the typed prosecution opening which was tendered as Exhibit A on the plea hearing.
22On 22 November 2018, a woman named Evangelia Christou noticed that you were in possession of a black Louis Vuitton bag when she arrived to pick you up. After spending some time together, the two of you attended a friend’s house at about 1 pm that afternoon. Police attended approximately 20 minutes later and arrested you in a nearby laneway as you sought to flee on foot. When they conducted an authorised search of Ms Christou’s vehicle a short time later, police located the black Louis Vuitton bag inside of which they found a home made handgun. Subsequent examination and testing of that firearm strongly suggested that your DNA was on the grip and trigger areas of that firearm.
23When later interviewed, you admitted to possessing and owning that firearm.
24The firearm is depicted in the bundle of photographs tendered as Exhibit B on the plea hearing.
25An examination of that weapon was conducted by a police ballistics expert. The weapon was found to be loaded but not operational. However, it was capable of being rendered so.
Pre-sentence detention
26Although you have remained in custody for the entire period since you were remanded in custody for this matter on 23 November 2018, you are unable to rely on that entire period as pre-sentence detention since, in the interim, you were sentenced to a sentence of just over two and a half years with a non-parole period of 18 months. That sentence was imposed by Judge Pullen on 19 May 2020 and expired on 29 June 2021 because you voluntarily had your bail on that matter revoked on 27 March 2019 and could therefore rely on 445 days’ pre-sentence detention as at the date on which Her Honour sentenced you. Of course, that period cannot be double counted now.
27As at but not including the date of the plea hearing in this matter, the total period of pre-sentence detention that could be declared in respect of this matter was 448 days. That total period was made up of the 123 day period between 23 November 2018 and 26 March 2019 and the 325 day period between 29 June 2021 and 19 May 2022.
28As at but not including the date of today’s sentence hearing, the total pre-sentence detention period that can be declared for this matter is 487 days.
29In calculating the sentence to be imposed for the current charges, I need to have regard to the history of the proceedings in that other matter to ensure that the sentence imposed is a just one and that when viewed globally, the effective sentence for both matters is commensurate with the totality of your criminality, no more and no less. As such, totality considerations are clearly engaged here at a level beyond the fact that you fall to be sentenced for two offences committed in relatively close temporal proximity to each other.
Prior criminal record
30As revealed by the contents of the prior criminal record filed with this court, you have a very relevant prior criminal history, Mr Crockett.
31In May 2014, you appeared in the Children’s Court in respect of 30 offences, including carry dangerous article in public, possess controlled weapon, possess prohibited weapon, make threat to kill and unlawful assault. For that offending, you were placed on six months’ probation, without conviction.
32You have previously appeared in the adult jurisdiction on four occasions.
33In May 2015, you were convicted and sentenced to be detained in a Youth Justice Centre for two years and two months for four offences, the most serious of which were aggravated burglary and false imprisonment.
34You received a further three months' detention in December of that year for contravening a family violence intervention order and assault emergency worker on duty.
35In August 2016, you were sentenced to a further six months' detention for offences that included possess controlled weapon and possess cartridge ammunition.
36Your most recent prior court appearance was in February 2017, at which time you were sentenced to an effective total sentence of 15 months’ imprisonment with a non-parole period of eight months. Your offending on that occasion included unlawful assault, possess handgun with a barrel length less than 120 millimetres, possess imitation firearm, possess prohibited weapon, possess controlled weapon and possess dangerous article in a public place.
Subsequent criminal history
37In addition to those prior convictions and findings of guilt, you also have a relevant subsequent criminal record.
38It involves a single court appearance in this court on 19 May 2020, at which time you were sentenced to a total effective sentence of two years, six months and seven days’ imprisonment for one charge of carjacking and a summary charge of breach condition of parole. A non-parole period of 18 months was fixed. A total of 445 days was declared as pre-sentence detention already served. However, you could never be considered for release on parole and ended up serving the entire head sentence because you remained on remand for the current charges. In line with the requirements of the totality principle, I have given that fact appropriate weight when determining the appropriate sentence to impose for these charges.
39The circumstances of that earlier offending are described by the sentencing judge in her sentencing reasons, a copy of which were tendered as Exhibit C on this plea hearing. At the time of sentencing, Judge Pullen noted that it occurred on 29 January 2018, some six weeks or so after you had been released on parole.
Relevant Chronology
40Before turning to consider your personal circumstances, Mr Crockett, it is worth noting some aspects of the chronology of events since you committed the carjacking offence on 29 January 2018. You were on parole at the time you committed that offence. You had been granted parole on 22 November 2017 in relation to the offences for which you had been sentenced on 9 February 2017. At the time that your parole was cancelled, you owed four months and 25 days to the Parole Board which you duly ended up serving between 5 April and 27 August 2018. You were then released on bail for the carjacking offence on 21 September 2018. You were still on that bail at the time that you committed the current offences, which is an aggravating factor of your offending.
Personal circumstances
41I now turn to outline your personal circumstances, Mr Crockett.
42They have been helpfully outlined in your counsel’s written submissions and in a very recent report prepared by the psychologist, Dr Aaron Cunningham.[6]
[6] That report was dated 18 May 2022 and tendered as exhibit 2 on the plea.
43You were 22 years of age when you committed the current offences. You turned 26 very recently, having been born on 2 June 1996.
44You are the second youngest child in a very large family. You have two siblings and ten half siblings. Your upbringing was dysfunctional and disadvantaged. Both parents were alcoholics and drug users. You were subjected to family violence at the hands of your father and to sexual abuse by a half-brother. Your parents separated about five years ago.
45You were born with osteomyelitis and septic arthritis in your left hip which ultimately resulted in you having a hip replacement at the young age of 13 after which you were wheelchair bound for seven months.
46You attended many secondary schools owing to the behavioural issues that you were experiencing. You left school and home at the age of 15.
47Since that time, you have worked intermittently with your father building caravans.
48You have a lengthy history of substance abuse which commenced in the aftermath of your surgery and escalated at about the time that you left school. You commenced to drink alcohol and then use cannabis, heroin and methamphetamines. You have also used GHB since age 17. You can now see that you turned to drug abuse to escape your thoughts and feelings. As noted by Dr Cunningham, you appear to have become lost in a spiral of drug abuse and offence behaviour until your most recent incarceration. You have described your life as a ‘crash course’ during the time that you have used drugs. However, you have been drug free in custody for a significant period now and are currently engaged with the buprenorphine injection program.
49You have two children of your own, from different mothers. You have a seven year old son from a previous relationship who lives with his maternal grandmother. You have had no contact with he or his mother in recent years but are currently making efforts to resume contact with that son. You have been in your most recent relationship for approximately four and a half years and that union has produced a son who is now aged three. Whilst your current partner remains supportive, the relationship has undergone some additional stress since you were recently convicted at trial.
50You were assessed by the psychologist, Dr Aaron Cunningham, on 18 May this year, that is, after you had been convicted of this offence of intentionally cause serious injury. He concluded that you suffer from a post-traumatic stress disorder which stems from the abuse you experienced in your childhood. You attempt to avoid such recollections through drug abuse. In Dr Cunningham’s view, you present with marked arousal in the form of hypervigilance, reckless and self-destructive behaviour, irritability and outbursts of anger and sleep disturbance. After conducting a risk assessment, he concluded that you present as a moderate risk of future violent offending. That would increase in the context of any further drug abuse.
51You appear to have made a concerted effort to advancing your rehabilitation prospects since going into custody. Initially, you were able to engage with multiple courses and weekly counselling. You were engaged with drug rehabilitation programs and with psychiatrists on a fortnightly basis. In addition, you had weekly contact visits with your family and two hours per month of relatively unsupervised contact visits. As you explained to Dr Cunningham, that all changed when Corrections had to implement COVID19 related restrictions. And, in addition, you have been subject to various lockdowns, including recently whenever a COVID case is detected. The longest lockdown period you have experienced has been one month.
52As is clear from what she told Dr Cunningham and in her letter to this court, your sister, Josephine, has been impressed with the dramatic and positive change that you have exhibited whilst in custody. In her view, you now appear to be more grounded and equipped with greater understanding and purpose in your life.
53In his report, Dr Cunningham notes that you have benefited from the continuing support that you have received from your partner and sister. You are motivated to try and become a better person. The COVID-19 restrictions imposed by the custodial authorities have severely curtailed your rehabilitative and treatment programs and you have since struggled with lockdowns and a lack of support. Notwithstanding those difficulties, however, you have maintained motivation for self-improvement with a view to leading a more stable life in the community.
54In terms of treatment recommendations, Dr Cunningham notes that you would benefit from continuing psychological and drug and alcohol support in the community, as well as from maintaining your supportive relationship and accommodation.
55In Dr Cunningham’s view, a lengthy period of incarceration at this time may compromise your rehabilitative efforts and aggravate your symptoms of hopelessness. Ceasing drug use would be the main factor in decreasing your risk of re-offending. Engaging with community rehabilitative efforts and maintaining your supports would improve your prospects for rehabilitation.
Matters in mitigation
56Your counsel was able to rely on the following matters in mitigation, Mr Crockett.
57Once arrested by police, you cooperated by way of admitting to possession of the handgun and then pleaded guilty to the corresponding charge of prohibited person possess firearm at what I accept to be an early stage. I note that the final resolution of that matter was delayed until such time as the trial in respect of the charge of intentionally causing serious injury could be held.
58Through that plea you have demonstrated a preparedness to facilitate the course of justice. By opting to take that course during the COVID-19 pandemic when the court is facing a significant trial backlog and intense listing pressures, you are deserving of an even greater sentencing discount for that offence than would otherwise have been the case in pre-COVID-19 times. That is because the utilitarian value of a plea entered in those circumstances is, as the Court of Appeal has clearly stated, greater.
59The court must also recognise the more onerous conditions in which you have been in custody during the latter part of your remand for these charges and whilst serving part of the period to which you were sentenced by Judge Pullen. Of course, I am referring to the period since early 2020 when the COVID-19 pandemic first impacted. You have described that negative and somewhat demotivating experience to Dr Cunningham. There have been a number of lockdowns and a compromised ability to have contact visits, access to programs and work opportunities, due to the restrictions Corrections have had to put in place and, to varying degrees, maintain or re-implement, in order to deal with the unpredictability of the COVID-19 pandemic. Given the problems which this state and NSW have been having in more recent times trying to deal with outbreaks of the virus in gaols, I am prepared to accept that you, like many prisoners, will be concerned about contracting the virus while in a custodial environment in which you have only a very limited ability to control your own movements and living conditions.
60HIS HONOUR: Mr Crockett, I note or I have been told that you have just put your hand up. Can you still hear me?
61OFFENDER: Yeah, I can. Just one - I - I've only just got over COVID-19. I actually caught it. I only just got out of lockdown.
62HIS HONOUR: From having yourself had COVID?
63OFFENDER: Yeah, I tested positive for seven days.
64HIS HONOUR: Well, as you would readily appreciate, Mr Crockett, someone can get COVID on more than one occasion. So in that context - and thank you for that update - I am still prepared to accept that you will nonetheless have some concern about contracting a different strain of the virus while in a custodial environment. So that factor does not become irrelevant in the current circumstances.
65Notwithstanding those difficulties, you have done your best to use your time in custody as productively as you can. Those efforts are even more noteworthy given the difficult upbringing that you endured. Whilst in custody, you have worked as a billet. You have also undertaken courses, including drug rehabilitation courses. The multiple negative urine screen test results tendered on the plea appear to provide some support for the fact that, as you have indicated, you have remained drug free whilst in custody. You have also engaged with counselling services and psychiatrists in relation to your mental health issues. All of that is to your credit and suggests that you are truly motivated to reform.
66As already noted, there has been a delay of over three and half years between the date on which you were charged with committing these offences and the date on which you will be sentenced. That is a significant period, no doubt explained to a significant degree by the difficulties that this court has had in trying to conduct trials during the currency of the COVID-19 pandemic. Whatever be the reasons for this delay, it cannot be said that you were in any way to blame. I accept, therefore, that such delay has meant that you have had this matter and your ultimate fate hanging over your head for a considerable period with all of the uncertainty and anxiety that could be expected to flow from such a delay. I have been told by your counsel that you have not been a management problem whilst in custody and that, together with the positive steps that you have taken towards self-improvement over the past few years, suggests that your prospects of rehabilitation are better now than when you were first charged and remanded in custody for the current offences. Given your age and the fact that you have had plenty of time to reflect on your situation whilst in custody, I am prepared to allow for the possibility that you may well have undergone and be still undergoing a process of maturation and personal development. That is certainly the impression I have gleaned from the letter you have written to the court and from the positive testimonials written by your sister, Josephine, and your partner, Chantelle.
67Fortunately, you have the continuing support of your current partner as well as your sisters and father. You propose to live with your partner and son on your eventual release from prison. I accept that you are again likely to be able to work with your father once released. All of those matters should act as protective factors in your case but do not guarantee your ability to remain drug and offence free in the community. Clearly, as Dr Cunningham has noted, ongoing counselling and treatment for your drug addiction and mental health issues will be a key aspect of any serious attempt at long term rehabilitation in your case. I do not underestimate the difficulty of the task that lies ahead of you in that regard. It would be naïve to do otherwise.
Objective gravity of the offending
68Another important consideration that this court must have regard to is the objective gravity of the offending in which you engaged.
69As indicated by the high maximum penalty for intentionally causing serious injury, any such offence must be regarded as intrinsically serious and be treated very seriously.
70I regard this example of intentionally causing serious injury as falling in the mid-range on the spectrum of seriousness for this type of offence. It was committed by means of the discharge of a loaded firearm at close range. The victim was unarmed. He suffered a painful gunshot injury to his left leg and I am satisfied that it would have taken some weeks if not months for him to fully recover from the physical aspects of that injury. I also note that the shooting occurred in a residential street at a time when some members of the public could be expected to be awake and going about their normal daily activities. That offence was witnessed by Mr Woolley and others were subjected to the traumatic aftermath when left to attend to the bleeding and no doubt distressed victim until the arrival of the ambulance. It is a troubling aspect of this offence that it remains unexplained to this day. And, of course, the offence is made more serious and the offender’s moral culpability must be viewed as increased by the fact that Mr Crockett shot the victim while on bail for another serious indictable offence.
71Those things said, I also note that there is no real evidence suggesting that this offence was premediated or involved significant planning. It is also relevant to note that the firearm was discharged once not multiple times and that Mr Crockett appears to have taken aim at the victim’s leg as opposed to a more vital area of his body. As far as the range of injuries that can be regarded as serious under the relevant statutory definition, I regard this serious injury to fall in the mid-range. Whilst clearly a serious injury on account of its life threatening nature, there is nothing to suggest that Mr Tangi had anything but a normal and uncomplicated physical recovery. Indeed, he was able to discharge himself early and appears not to have re-presented to any hospital at any later time.
72As for the other offence, I note that it carries a relatively high maximum penalty and so must be viewed as also being extrinsically serious. I consider this offence to also be a mid-range example of its type by reference to the spectrum of seriousness for such offences. It involved a loaded albeit temporarily non-operational firearm. It was aggravated by the fact that it was committed whilst on bail for another serious indictable offence. Mr Crockett’s level of moral culpability must be seen as correspondingly elevated. It is quite troubling to this court that Mr Crockett would choose to arm himself with yet another firearm in the aftermath of the shooting incident, yet that is exactly what he appears to have done. And, again, his offending is unexplained. I am satisfied that such possession on his part was not undertaken lightly or for any benign purpose. Precisely why he had it I am unable to conclude. Whether it was as a means of self-protection fearing a reprisal from Mr Tangi or his associates, or for the purpose of committing another offence, I simply cannot say. But either way, it does not reflect well on Mr Crockett.
73When the circumstances of these two offences are assessed, and after having regard to his very relevant prior criminal history for offences involving weapons and/or violence, Mr Crockett’s level of moral culpability must be viewed as significant.
Relevant sentencing principles
74Quite clearly, this offending, and in particular that involving the serious injury charge, requires this court to give significant weight to the principles of denunciation and general deterrence. The community is rightly concerned about the possession by prohibited persons of firearms and even more troubled by any resort to such weapons for the purpose of causing serious injury, particularly in a public place. Understandably, there is a corresponding expectation that when a court sentences an offender for this type of offending, it will impose a sentence that makes it very clear that such serious criminal conduct will not be tolerated and which provides a suitable measure of discouragement to others in the community that might be contemplating acting in a similar way.
75There are a number of relevant considerations to be borne in mind when determining the weight to attach to the sentencing principles of specific deterrence and protection of the community. Mr Crockett has a very relevant criminal history and has been undeterred by past sentences involving youth detention and adult imprisonment. Furthermore, he committed these offences whilst on bail. Unless and until he comes to grips with his serious drug and mental health issues, he will remain a moderate if not higher risk of re-offending. And, as his recent criminal history reveals, the seriousness of the offences he is prepared to commit has been escalating. But, those matters cannot be viewed in isolation and Mr Crockett’s prospects are now better than what they were when he committed these offences.
76This court must also have regard to Mr Crockett’s age and prospects of rehabilitation. Having recently turned 26, he must be regarded as a relatively young man who, with the right attitude and level of commitment, is capable of achieving some level of rehabilitation. There are some positive signs which suggest that he is motivated to turn his life around although the real test will come when he is released into the community. In the end, all relevant matters considered, I have concluded that Mr Crockett’s prospects are fair to reasonable, albeit somewhat guarded. Like Dr Cunningham, I am of the view that those prospects would be enhanced were Mr Crockett to undergo a suitable period of counselling and treatment which targeted his underlying drug addiction and mental health issues.
77This court must impose a just sentence on Mr Crockett. In assessing what is just, regard must be had to the nature and seriousness of his offending, including any aggravating and mitigating features, as well as his personal circumstances, including the matters in mitigation upon which he can rely. Individualised justice is what is called for.
78The sentencing principle of parsimony, while always a relevant consideration, is particularly important where, as here, an offender with a relevant criminal history falls to be sentenced for serious offending in circumstances where he has made positive progress over a significant period between the date of offending and the date of sentence. That is even more so when that offender is still relatively young and at risk of becoming institutionalised and deflated if faced with a very stern and lengthy sentence. For reasons touched upon by Dr Cunningham, that is neither in Mr Crockett’s nor the community’s best interests. Whilst there are of course limits to what this court can do in assisting Mr Crockett to rehabilitate, it seems to me to be appropriate in this case to attempt to foster and encourage his prospects, particularly by way of imposing a somewhat disparate non-parole period by reference to the head sentence.
79As I have already noted, the totality principle arises for consideration in this case in a number of respects. First, the two offences for which Mr Crockett now falls to be sentenced were committed within a week or so of each other. Whilst each offence is discrete and involves a separate level of criminality on his part, a sensible level of concurrency as between the individual sentences imposed for those offences is called for. Further, and as I have already observed, Mr Crockett was denied the opportunity for possible release on parole in respect of the Judge Pullen sentence on account of his arrest and remand for the current charges. Had he been sentenced for the Judge Pullen charges and the current charges at the same time, it is likely that there would have been a level of concurrency as between the two sentences. I have taken all of those matters into account when determining what an appropriate and just sentence is for the current charges.
Sentencing submissions
80In his realistic submissions on penalty, Mr Backwell urged the court to sentence Mr Crockett in a way that did not extinguish the hope that he has for reuniting with his family and embarking on a more productive lifestyle in the community in the not too distant future. As he appropriately acknowledged, such a sentence would have to be imposed by way of a head sentence and non-parole period.
81Counsel who appeared on behalf of the Director, Mr Pirrie, emphasised the serious nature of this offending and the relevance of Mr Crockett’s criminal history. He pointed out the need to emphasise such sentencing factors as deterrence, denunciation and just punishment and ultimately submitted that nothing short of a sentence comprising a head sentence with a non-parole period was appropriate to deal with the seriousness of this offending.
Analysis
82In my view, this case clearly demands the imposition of a custodial sentence in the form of a head sentence with a non-parole period.
83That said, however, it must also be noted that there are at least some significant matters in mitigation that Mr Crockett can call in aid and they have influenced me to impose a materially lesser sentence than I otherwise would have, including a non-parole period that is somewhat disparate when viewed against the head sentence. I have taken that course in order to keep any sentence to the minimum that the justice of this case requires and in order to promote and encourage Mr Crockett’s now improved prospects of rehabilitation.
Sentence
84Accordingly, I will convict Mr Crockett in respect of each charge and sentence him to the following terms of imprisonment.
85On Charge 1 on indictment J13060768.A, intentionally causing serious injury, five and a half years.
86On Charge 1 on indictment J13060768.B1, prohibited person possess firearm, 12 months.
87The sentence of five and a half years imposed in respect of the intentionally causing serious injury charge will be the base sentence.
88In all of the circumstances of this case, I consider that it is appropriate to order that four months of the sentence imposed for the prohibited person possess firearm charge be served cumulatively with that base sentence.
89Accordingly, the total effective sentence is five years and 10 months’ imprisonment.
90In respect of that head sentence, I fix a non-parole period of three and a half years.
Pre-Sentence Detention
91Pursuant to s18 of the Sentencing Act 1991, I declare that Mr Crockett has served a total of 487 days pre-sentence detention, not including today’s date, in respect of today’s sentence. I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.
Section 6 AAA Indication
92Pursuant to s6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to the offence of prohibited person possess firearm, I would have sentenced Mr Crockett to a period of 18 months’ imprisonment for that offence and cumulated six months of that sentence on the base sentence of five and a half years.
Ancillary Orders
93I make the disposal order in the amended terms sought by the prosecution, pursuant to s78 (1) of the Confiscation Act 1997. I note that the making of this order was not opposed by the defence.
94And, I also I make the forfeiture order in the terms sought by the prosecution, pursuant to s151 of the Firearms Act 1996. The making of that order was again not opposed by the defence.
Other Matters
95Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Backwell?
96MR BACKWELL: No, your Honour.
97MS SHIVAKUMAR: No, your Honour.
98HIS HONOUR: Mr Backwell, do you want to take advantage of the current link to Mr Crockett to speak to him briefly after I leave the Bench?
99MR BACKWELL: If I may, sir, yes, please.
100HIS HONOUR: Well, I will permit that in the usual terms, noting that it will not be able to be conducted in terms of complete privacy and confidentiality, Mr Backwell. Mr Crockett, Mr Backwell will speak to you briefly after I leave the Bench, all right.
101OFFENDER: Yes. Thank you for your time, Your Honour.
102HIS HONOUR: Thank you, counsel. Yes, I will adjourn the court until 3.15 pm tomorrow. Thank you.
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