Director of Public Prosecutions v Shepard (a pseudonym)

[2022] VCC 1293

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL HARLEY SHEPARD (a pseudonym)

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JUDGE:	HER HONOUR JUDGE LEIGHFIELD
WHERE HELD:	Ballarat
DATE OF HEARING:	29 July 2022
DATE OF SENTENCE:	11 August 2022
CASE MAY BE CITED AS:	DPP v Shepard (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1293

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:              Prohibited person possess a firearm – intentionally causing injury – commit an indictable offence whilst on bail – totality – plea of guilty – deprived childhood – mental health issues – post-traumatic stress disorder – impact of COVID-19 on burden on imprisonment

Cases Cited:R v Verdins [2007] VSCA 102; Bugmy v R [2013] HCA 37; Berichon v The Queen [2013] 40 VR 219

Sentence:                  Convicted and sentenced to a term of imprisonment of 3 years and 3 months, with a non-parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Stephen Devlin	Office of Public Prosecutions
For the Accused	Mr Alexander Patton	Sarah Pratt & Associates

HER HONOUR:

Introduction

1Paul Shepard,[1] you have pleaded guilty to one charge of prohibited person possess a firearm (Charge 1) and one charge of intentionally causing injury (Charge 2).  You have also consented to this court hearing, and pleaded guilty to, the related summary offence of committing an indictable offence whilst on bail which is related Summary Charge 6.

[1] A pseudonym.

2The maximum penalty for each of the offences of being a prohibited person possessing a firearm and intentionally causing injury is 10 years' imprisonment, whilst for committing an indictable offence on bail is three months' imprisonment.

3These charges arise from an incident which occurred on 1 October 2020 when you were 27 years of age.

Circumstances of Offending

4The full circumstances of the offending for which you fall to be sentenced are set out in the summary of prosecution opening for plea dated 4 March 2022 which was tendered as Exhibit A on the plea.  However, in shorter compass, your offending was as follows.

Events Leading up to the Incident

5On Monday 28 September 2020, the victim in this matter, Caleb Simmons,[2] and his friend Hayden Chan,[3] attended at a unit in Lake Wendouree.  The occupant of that property was Justin Lowery.[4]  Whilst Mr Simmons and Mr Chan were in the unit, Mr Lowery and his partner Ms Hester[5] had an argument, which led to Mr Simmons and Mr Chan being asked to leave.  Mr Simmons then drove Mr Chan to a friend's house in Delacombe.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

[5] A pseudonym.

6

In the hours following their departure from the unit, Mr Chan received aggressive phone calls from Mr Lowery accusing Mr Chan and Mr Simmons of stealing a few points of methylamphetamine from him.  You also called Mr Chan and spoke to him  for about  four minutes.  During that conversation you demanded that the stolen points of meth be returned to Mr Lowery.  You threatened that if the meth was not returned you would smack Mr Chan around.  This threat terrified

Mr Chan who tried, without success, to call and text Mr Simmons.

7At 11.18 pm, Mr Chan sent you a message saying, 'Word pm not there mate I haven't done nothing why are you turning on me.'  This message was followed by a brief phone call from you to Mr Chan where you demanded to know where to find Mr Simmons.  Fearing for his safety, Mr Chan sent you four text messages between 11.20 pm and 11.26 pm wherein he provided you with Mr Simmons's phone number and Facebook details.  Mr Chan then attempted to contact Mr Simmons again.

8At 2.19 am on 29 September 2020, Mr Chan sent you a further message which said. 'I'm waiting for this dog [Mr Simmons] to message me back.  I dead set haven't taken shit from Justin [Lowery].'

9Two days later, just after midnight on 1 October 2020, Mr Simmons drove his car to an intersection in Redan to meet his friend Alexandra Gaines.[6]  Whilst waiting for Ms Gaines in his vehicle, Mr Simmons saw a red Holden station wagon drive around the block and then pull up next to his vehicle so that the rear driver's side passenger window was level with his window.  You were seated in the back seat of the vehicle.  You accused Mr Simmons of stealing from Mr Lowery and then said, 'Get the fuck out of here before I get my gun and shoot ya.'  Mr Simmons then immediately drove home.

[6] A pseudonym.

The Shooting

10

Just before 3 am on the same morning, Mr Simmons decided to drive over to

Mr Lowery's unit in Lake Wendouree to try and sort out the dispute.  When he arrived, Mr Simmons saw that the same red Holden station wagon which you had been in earlier was parked in the driveway of the unit complex.  An occupant of the premises, Emile Frye,[7] was present and working on a car in the driveway.  

Mr Simmons asked Mr Frye to get Mr Lowery from inside the unit.  Whilst Mr Frye was in the unit, he spoke to Mr Simmons and sent a text message to a

Joey Long[8] who then contacted you and left a voice message on your phone.  

Mr Frye then went back outside and told Mr Simmons that Mr Lowery did not want to speak to him.

[7] A pseudonym.

[8] A pseudonym.

11

Mr Simmons then approached a window of the unit in an attempt to urge Mr Lowery to speak to him.  As he was doing this, you and an unidentified male arrived at the address in a silver car, got out, and walked up the driveway.  You were carrying with you a long-arm rifle in your left hand.  You are a prohibited person under the Firearms Act at the time as a result of prior offending and that constitutes

Charge 1, prohibited person possess firearm.

12As you approached Mr Simmons you began screaming at him.  Mr Simmons responded to you saying that he was there because he wanted to speak to Mr Lowery.  You became irate and pointed the gun at Mr Simmons's head and chest.  You then used the barrel of the gun to strike Mr Simmons's chin before ordering him to get on the ground.  Mr Simmons complied with your demands and got down on his knees. When Mr Simmons attempted to get to his feet, you used your left hand to operate the rifle bolt.  You then pointed the gun at Mr Simmons's legs and fired a shot which hit Mr Simmons's right thigh (Charge 2, intentionally causing injury).  At the time of this offending you were also on bail for other offences and that constitutes Charge 6, commit indictable offence whilst on bail.

13After you had shot Mr Simmons in the leg, you and the unidentified male fled back to the silver car and drove away.  Mr Simmons returned to his vehicle and drove himself to the Ballarat Base Hospital and was treated in relation to the gunshot wound to his right thigh and the wound to his chin.  Whilst Mr Simmons has not made a victim impact statement in this case, I have no doubt that such an incident would have been terrifying, at least in the short term, for Mr Simmons.  Insofar as the injury suffered by Mr Simmons, the bullet missed bone, major arteries and nerves and the wound ultimately healed without complication.  He remained in hospital for observation until 3 October 2020.

Arrest, Interview and Remand

14You were arrested at 4.45 am on 3 October 2020 at the front of the emergency department of the Ballarat Base Hospital, where you had presented with a condition commonly referred to as welders flash. 

15You then participated in a record of interview where you told investigators that you worked as a concreter and that you were home all night on 30 September 2020 and only left your address to get alcohol from the Howitt Street drive-through bottle shop.

16You said that you had sustained welders flash whilst welding at home the previous day.  You told investigators that you knew Mr Simmons and were involved in an ongoing feud with him.  When you were asked if you wanted to participate in an identification parade, you told investigators that if you saw Mr Simmons again that you would chin him.  You admitted that you were on bail at the time of the offending.

17After your record of interview, you were charged and remanded in custody and have remained in custody since that time. 

18The firearm used by you during this incident has not, to date, been recovered.

Prior Convictions, Subsequent Convictions and Totality

19

You come before the court with a significant prior criminal history.  The matters which have been alleged before me commence with a sentence in the

Children's Court on 24 July 2012  when you were 18 years of age.  You were sentenced to a four month term of detention in a Youth Justice Centre for affray with a concurrent two-month term of detention imposed on the re-sentencing of offences on a breach of a Youth Attendance Order.

20

From July 2012 until you were remanded on the current offences, you appeared in court on multiple occasions and received multiple terms of imprisonment for driving, drug, weapons and assault-related offences.  Indeed, an analysis of both your remand history[9] and your criminal record reveals that you have spent

seven of the last nine years in custody.

[9]Exhibit B.

21

Of particular relevance to my sentencing task is your history of assault-related offences and firearms offences.  In addition to the sentence imposed on you for affray in 2012, you have been fined for assaulting an emergency worker on duty in January 2015, received 11 months' imprisonment in combination with a community correction order for intentionally causing injury and other offences in

September 2015, received 21 months' imprisonment with a non-parole period of

15 months for unlawful assault and reckless conduct endangering serious injury together with other offences in December 2016 and 71 days' imprisonment for threat to inflict serious injury and threatening to assault an emergency worker on duty in February 2019.

22

Insofar as firearms offences are concerned, you were sentenced to six months' imprisonment for being a prohibited person in possession of a firearm in

February 2014 and were sentenced to three months' imprisonment for being a prohibited person in possession of a firearm on 21 August 2020.  As a result of a combination of pre-sentence detention and management days, you were released from custody a day later on 22 August 2020.  This was only six weeks before you committed the current offences.

23In addition to your prior criminal history, your remand history reveals that you have been sentenced subsequent to your remand on these matters for both offending, which pre-dated the current offences, and a breach of a community correction order.  You were sentenced on 4 and 5 May 2021 respectively to terms of imprisonment with time served.  As a result of these sentences, whilst you have been in custody for a total of 677 days, you only have 463 days of pre-sentence detention available to you in respect of the current offences.  I have, however, taken into account the additional period of time you have spent in custody when applying the principle of totality in this case.

Gravity of Offending

24There is no doubt that your offending in this case is serious offending.  You had only been out of custody six weeks after serving a term of imprisonment for being a prohibited person in possession of a firearm and you were, again, in possession of a firearm.  You were also on bail at the time of the offending.  You were armed when you arrived at Mr Lowery's residence which shows some level of pre-planning and on arrival you intentionally shot the victim. 

25

Whilst I accept that you initially became involved in this matter to assist Mr Lowery who was an associate of yours and also accept that you did not lie in wait for

Mr Simmons or lure him to Mr Lowery's residence, the fact remains that you did not have to attend at Mr Lowery's residence and you did not have to shoot Mr Simmons.

26I agree with Mr Devlin's submission that the offence of being a prohibited person in possession of a firearm is, in the circumstances of this case, the more serious of the two indictable offences which you face.  You have two prior convictions for being a prohibited person in possession of a firearm and had only just finished serving sentence for such a charge at the time of committing these offences.  Further, your possession of a firearm on this occasion must be considered to be in the more serious category of case of being a prohibited person in possession of a firearm, given the use to which you put the firearm.  As observed by Redlich JA in Berichon v The Queen [2013] 40 VR 219:

The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness.  Those categories have been discussed in R v Graham and Armistead v The Queen.  The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity.  Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence.  The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order.  Such sentences will be appropriate where the firearm is, for example, possessed in the context of a criminal activity to provide security or as a means of enforcement.  The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.

27

I also agree with Mr Devlin's submission that the intentionally cause injury charge is a serious example of that kind of offence.  Whilst the injury caused was not particularly grave, you committed the offence in the context of having a relevant prior history of assault-related offences, you had engaged in a level of

pre-planning and it is open to infer that you attended at the premises with the intention of causing injury to Mr Lowery, rather than it being a spontaneous or spur of the moment action. 

28In sentencing you for these offences I have kept firmly in mind that I must not doubly punish you in respect of your conduct.  In circumstances where I have formed the conclusion that the offending subject of Charge 1 is aggravated by reason of your possession of the firearm for the purposes of engaging in criminal activity, I have been careful not to aggravate the sentence in respect of Charge 2 by reference to your use of a firearm to cause the injury.  There is, however, in my view, a need to still impose a level of cumulation as between Charges 1 and 2 to denounce and deter the separate forms of offending that each of those charges encompass.

29Similarly, because I am of the view that the intentionally cause injury charge is aggravated by reason of being committed whilst on bail, I have been careful not to aggravate the sentence imposed on the summary related offence by reference to the serious nature of the offence which was committed whilst on bail.

30Finally, I note that notwithstanding s16(1A)(e) and (3C) of the Sentencing Act, which provide that every term of imprisonment imposed on a person for an offence committed whilst released on bail should, unless otherwise directed, be served cumulatively on any other sentence imposed.  I am of the view that, in this case, the terms of imprisonment imposed should not be wholly cumulative given the need to have regard to the principle of totality. 

Plea of Guilty

31Turning now to your plea of guilty. 

32Your plea of guilty in this case is a valuable plea.  Whilst you held a contested committal where witnesses, including the victim, were cross-examined, it was conceded by Mr Devlin on behalf of the prosecution, and I accept, that your plea was still entered at an early opportunity.  This matter resolved shortly after the committal hearing with the most serious charges against you no longer being pursued.  The matter resolved on 23 November 2021 and was listed for a plea in the circuit commencing 15 March 2022.  The plea has since been adjourned  on a number of occasions until it was finally able to be listed and heard before me in this current circuit.

33I accept that your plea of guilty both facilitates the course of justice and has significant utilitarian value.  The value of your plea is further enhanced in the current circumstances of the pandemic which has had a substantial impact on the smooth running of the criminal justice system in this State.  Finally, I am also satisfied that your plea indicates an acceptance of responsibility by you for your offending, as well as a level of remorse for your conduct, which is further reflected in your letter which you wrote to the court.[10]  I cannot, however, be satisfied that you are fully remorseful, given the matters raised by Dr Evans in her neuropsychological report dated 21 May 2022 which was prepared for the purposes of this plea.[11]

[10]Exhibit 12.

[11]Exhibit 3. See pages 4-5.

34Ultimately, taking into consideration all of the above matters, I have given you a substantial discount on sentence for your plea of guilty.

Personal Circumstances

35Turning now to your personal circumstances.

36You are now 29 years of age.  You were one of three children born to your mother and father and you still have the support of both of your parents.  Unfortunately, you had a particularly traumatic and unstable childhood.  Your father had drug issues and was in and out of prison from mid-1994 onwards in respect of both drug and driving offences.  Your mother and father then separated in 1997 when you were only four years of age, although your father always made an effort to try and spend some time with you and your brothers when he was not in custody.

37Your mother, through no fault of hers, found it difficult to raise three young boys.  Each of you had difficulties.  In your case, you had been diagnosed with attention hyperactivity disorder (ADHD) when you were approximately two or three years of age and had been placed on medication to deal with the symptoms of that disorder.[12]  When you were between the ages of 5 and 7, your mother took the opportunity to place you and your twin brother, on occasions, in respite care with a family friend.  That family friend was also caring for a number of foster children at the same time.  

[12]Exhibit 6, Report of Dr Paul Kornan dated 30 March 2005.

38Whilst you were in her care, one of the foster children, who was a teenager at the time, subjected both you and your brother to repeated and protracted sexual abuse.  You were the victim of multiple anal and oral rapes, as well as other forms of physical violence.  Further, the offender threatened you that if you told anyone about the abuse he would kill your mother and that you would then go into foster care and that he would be able to have you all the time.  The offending against you was ultimately reported and the offender, who was still a teenager at the time, was sentenced to a non-custodial disposition in the Children's Court following a plea of guilty.

39

In the aftermath of these experiences, you suffered increased irritability and anger, nightmares, bedwetting and stomach pains as well as the broader symptoms of

Post-Traumatic Stress Disorder (PTSD).  You were referred for counselling and it was at this time that it was also discovered that you had some significant cognitive and intellectual difficulties.[13]

[13]Exhibit 7, Report of Jan Schlunke, psychologist, dated 16 August 2000.

40

You attended school but struggled due to your learning difficulties and ADHD.  Further, you were expelled a number of times during your primary and early secondary schooling years due to behavioural difficulties.  Your mother reports that you were teased relentlessly by your peers at school and you reacted physically to those taunts.  At the completion of year 8, you transferred to alternative education at the Ballarat Learning Exchange where you attended for a further 18 months.  After ceasing education, you then undertook some work for a concreting company as a bricklayer and also had periods of time when you were in receipt of a disability support pension.  I received references from both

Aaron Peters[14] and David Blaby[15] confirming that you had undertaken work with them and their teams and offering you work in the future upon your release from custody.

[14]Exhibit 8.

[15]Exhibit 9.

41

You first used both alcohol and cannabis when you were thirteen years of age and quickly descended into polysubstance abuse.  You started using methamphetamine on a daily basis when you were 19 years of age and MDMA

on a weekly basis from 20 years of age.  You also experimented with psilocybin, cocaine, LSD, heroin and ketamine.  On each occasion that you were released from custody, you would very quickly relapse into drug use.

42Prior to your most recent incarceration, you were living with your mother.  You have a five year old daughter from a previous relationship but have not had any contact with her since you were remanded in August 2020.  Whilst you have been in custody you have been limited in your ability to engage in work, educational and rehabilitative opportunities due to the restrictions brought about by the pandemic.

43However, you have managed to undertake some work as a canteen billet, have maintained clean urine screens throughout your time in custody and more recently in July 2022, have completed a three-hour Alcohol and Other Drug Communication Program.  Your plan on release from custody is to return to living with your mother, resume employment and work on being able to reconnect with your daughter who is currently in the care of extended family.

Relevance of Mental Health Issues and Bugmy Considerations to Sentencing

44

I was provided with a number of reports about your mental health and

cognitive functioning on the plea. 

45Some of those reports date back to the period between 2001 and 2005 and were prepared in respect of a civil action which resulted in you being paid damages by the State in 2005 for the sexual and physical abuse which you had suffered.[16]  It is apparent from those reports that you have had longstanding issues with ADHD, PTSD, learning and behavioural difficulties.  You were, as at 2005 when you were in Grade 6, still suffering from erratic behaviours at home and at school.  You would get upset easily and would be verbally and physically aggressive.  You had issues with trusting people in authority, would not allow males to get close to you and avoided any signs of physical affection.  You were also continuing to have nightmares about the assaults, were anxious about someone coming to harm your family and would be both upset and stimulated by violence on television.  It was considered at that time that you were in need of ongoing psychological assistance.[17] 

[16]Exhibit 4, Supreme Court orders dated 17 October 2005 with accompanying letter.

[17]See, eg, Exhibit 5, Report of Mr Michael Epstein, dated 1 June 2005.

46Further, Ballarat Base Hospital records from 2009 and 2011 show that you were still undergoing management for your ADHD and were having significant behavioural issues, including anger management problems in that period.

47You have more recently been assessed by neuropsychologist Dr Loretta Evans for the purposes of the breach proceeding in May 2021 and this current proceeding.  I received two reports from Dr Evans dated 21 April 2021 and 22 May 2022 respectively.  In her very extensive reports, Dr Evans noted the following matters of relevance to my sentencing exercise:

a)you satisfy the criteria for a formal diagnosis of a specific learning disorder;[18]

[18]Exhibit 2, p14.

b)whilst you do not satisfy the criteria for diagnosis of an intellectual disability, you have deficits in various verbal domains that are within mildly intellectually disabled ranges;[19]

[19]Ibid, p16.

c)you have a prior diagnosis of ADHD and still have attentional difficulties which contribute to your overall presentation;[20]

[20]Ibid.

d)you have a history of substance abuse which has also contributed to your presentation;[21]

e)you have chronic stress secondary to anxiety associated with childhood sexual abuse and protracted post trauma symptoms;[22]

f)a key contributor to your presentation is your exposure to abuse and chronic stress during childhood which has negatively affected your overall brain maturation and social development;[23]

g)whilst your level of adaptive functioning is sufficient at a day to day level, your verbal skills are limited and your ability to function in complex social situations or when in positions of perceived threat is likely to be moderately compromised;[24]

h)whilst your executive functions required for problem solving are within satisfactory ranges, the contribution of your poor social awareness, minimal verbal reasoning skills together with impulsive behaviour, are likely to intermittently negatively affect your ability to consistently demonstrate reasoned and informed decision-making;[25] and

i)

in order to progress in your rehabilitation you require treatment, including specialised one-on-one non-verbal counselling for both psychological and drug and alcohol related issues, as well as pharmacological intervention and regular psychiatric reviews to appropriately manage your

post-traumatic symptoms.

[21]Ibid.

[22]Ibid.

[23]Ibid, pp13-14.

[24]Ibid, p15

[25]Ex 2, p12.

48Ultimately, Dr Evans proffered the following opinion about the connection between your cognitive issues and your offending:

Based on his presentation and neuropsychological profile, Mr Shepard is capable of calm, polite and appropriate responding.  However, the presence of longstanding post-trauma symptoms has the potential to trigger maladaptive reactions in situations of perceived or actual threat.  Under such conditions, I consider Mr Shepard does have the potential to react defensively, as well as aggressively, and combined with established anger management issues and impulsive thinking, the ability to think in a calm and reasoned manner is likely to be significantly compromised.  Further, despite his level of insight and capacity to appreciate right from wrong at a basic level, the presence of a verbal learning disorder means he may not always understand complicated conversations, complex written directives, innuendo, proverbs, sayings, or generalisations without explicit explanation using simplistic terms.  In the absence of such explanations, Mr Shepard has the potential to misinterpret comments or fail to appreciate inference which may further influence his reactions.  Mr Shepard's cognitive limitations and post-trauma profile potentially contributed to the commission of the offences to a mild degree.  Furthermore, on balance, I consider the acute alcohol/substance intoxication and potentially heightened psychological state, were to have been the key contributors at the time of the offending and potentially contributed to the commission of the offences to a substantial degree.[26]

[26]Ex 3, p8.

49It was submitted by Mr Patton on your behalf that your mental health issues and the impact of your disadvantaged and traumatic childhood enliven the principles in both R v Verdins [2007] VSCA 102 and Bugmy v R [2013] HCA 37. He submitted that the trauma which you suffered as a child drew you towards substance abuse and criminal offending from a young age and left an indelible mark on your development and life. He submitted that the impact of your childhood experiences and your mental health issues is such that your moral culpability for the current offences is reduced and that the weight to be given to general deterrence in sentencing should be moderated. However, he also conceded that, in the circumstances, greater weight would need to be given to community protection and specific deterrence in the sentencing synthesis. Mr Devlin did not take issue with these submissions, save that he noted that it must be borne in mind that whilst the weight to be given to general deterrence should be moderated in this case, ordinarily the weight to be given to general deterrence in respect of offending of this kind is high.

50I accept and agree with the submissions made by both counsel.  The combined effect of your mental health issues and the impacts of your deprived upbringing are such that your moral culpability for this offending is reduced and the weight to be given to general deterrence should be moderated.  I also agree with the concessions made by your counsel that, in the circumstances, additional weight should however be given to community protection in the sentencing synthesis.

Impact of COVID-19 on Burden of Imprisonment

51You have been in custody since your arrest on 2 October 2020.  During the period you have been in custody you have been impacted by the COVID-19 pandemic in a number of ways.  I take into account that your time in custody to date has been more burdensome than it might otherwise have been due to the restrictions which have been imposed.  As a result of these restrictions, you have faced a number of lockdowns, your time out of your unit has been significantly reduced, your access to rehabilitative and work opportunities has been limited, and you have had reduced access to, and no face to face contact with, family and friends.  I take this added burden of imprisonment into account, both in terms of the time which you have already spent in custody and any further period of imprisonment which I impose. 

Submissions on Sentence

52Turning now to submissions on sentence.  Mr Patton conceded that the only sentencing option available to the court in this case is a term of imprisonment with a non-parole period.  However, he submitted that, due to your history of mental health issues and substance addiction, you require an extended period of support and treatment on your release from custody to prevent further relapse into drug abuse and offending.  Ultimately, Mr Patton submitted that there should be a substantial gap between the head sentence and non-parole period in this case, in order to afford you the opportunity of having sustained and appropriately tailored interventions in place when you are released from custody.

53

Mr Devlin agreed with Mr Patton that the only available sentencing disposition is one of a head sentence and non-parole period and did not take issue with

Mr Patton's submissions that you should be given the opportunity for an extended period on parole.

Current Sentencing Practice and Comparable Cases

54Whilst neither party directed me to any comparable cases and, indeed, I could not find any directly comparable cases, I have had regard to a number of cases where sentences have been imposed for offences of this kind.  Whilst the factual circumstances of the offending, and of the accused, are different in each case, they do provide some guidance as to the application of the relevant sentencing principles to offences of this kind.  Ultimately, however, I have sentenced you applying those principles to your offending and your particular circumstances.

Sentence

55

Having considered all of the matters put before me, I agree with both counsel that the only appropriate sentence in this case is a term of imprisonment with a

non-parole period.  I also agree with counsel that, given your particular circumstances, it is important that you be given an opportunity to have an extended period of supervision and treatment in the community as part of your sentence.  Such a sentence would not only give appropriate weight to denunciation, just punishment, community protection, specific deterrence and general deterrence as moderated, but would also give you an opportunity to make progress towards rehabilitation.  However, I have kept in mind in sentencing you that you may be required to serve every day of the head sentence which I impose and I have endeavoured to ensure that the sentence I impose is one which would still be appropriate in those circumstances.

56So, Mr Shepard, on Charge 1, being the charge of prohibited person possess a firearm, you are convicted and sentenced to two years and nine months' imprisonment.  That is the base sentence.

57

On Charge 2, intentionally cause injury, you are convicted and sentenced to

12 months' imprisonment.

58On related Summary Charge 6, commit an indictable offence whilst on bail, you are convicted and sentenced to one months' imprisonment.

Cumulation, Total Effective Sentence and Non-Parole Period

59I direct that six months of the term of imprisonment imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.

60So the total effective sentence, Mr Shepard, is therefore three years and three months' imprisonment. 

61You will have to serve a minimum of two years before becoming eligible for parole.

Pre-Sentence Detention

62I declare that a period of 463 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

s6AAA Declaration

63Pursuant to s6AAA of the Sentencing Act, I indicate that, had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective sentence of four years and nine months' imprisonment with a non-parole period of three years and four months.  So you have received a substantial discount for your plea of guilty.

Ancillary Orders

64Pursuant to s151 of the Firearms Act, I make a forfeiture order in respect of one shotgun shell.

65Pursuant to s78(1) of the Confiscation Act, I make a disposal order in respect of the following items: one grey jumper and one Samsung brand mobile phone.

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