R v Antoniak
[2021] ACTSC 228
•9 September 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Antoniak |
Citation: | [2021] ACTSC 228 |
Hearing Date(s): | 2 September 2021 |
ReasonsDate: | 9 September 2021 |
Before: | McWilliam AJ |
Decision: | See [79] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentionally and unlawfully discharging a loaded firearm so as to cause another person reasonable apprehension for their safety – intentionally causing damage to property – using a prohibited firearm without a licence or permit – where offender damaged property and intentionally discharged an unlicenced firearm at a residential house while occupants were inside |
Legislation Cited: | Crimes Act 1900 (ACT) s 27 Firearms Act 1996 (ACT) s 42 |
Cases Cited: | Barbaro v The Queen [2014] HCA 2; 253 CLR 58 |
Parties: | The Queen (Crown) Brodie Antoniak (Offender) |
Representation: | Counsel M Smith (Crown) M Kukulies-Smith (Offender) Solicitors ACT Director of Public Prosecutions (Crown) KS Lawyers (Offender) |
File Number(s): | SCC 162 of 2021 |
MCWILLIAM AJ:
Mr Brodie Antoniak, the offender, is before the Court for sentence in relation to the following offences:
(a)CC2020/12904: Intentionally and unlawfully discharging loaded arms, a .22 calibre rifle, so as to cause another person, namely, Garry Hughes, reasonable apprehension for his safety, contrary to s 27(3)(d) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 10 years’ imprisonment.
(b)CC2020/12905: Intentionally causing damage to property, namely, a blue Ford Focus sedan bearing ACT registration YKG73J belonging to someone else, namely, Alinta Parsons, contrary to s 403(1) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 10 years’ imprisonment, a fine of $160,000, or both.
(c)CC2020/13905: Using a prohibited firearm, namely, a shortened .22 long rifle Stirling model 14 whilst not authorised by a licence, permit or otherwise under the Firearms Act 1996 (ACT) (Firearms Act), contrary to s 42(1)(a)(iii) of the Firearms Act. The maximum penalty for this offence is 10 years’ imprisonment.
Facts
All three offences occurred on 3 November 2020 in the ACT and followed a heated dispute between the offender and the two victims, Mr Garry Hughes and Ms Alinta Parsons, about a Ford utility vehicle (the Ute), which the offender had owned since August 2020.
Mr Hughes has known the offender for what was said to be approximately 30 years. They were described in the agreed facts as friends.
The offender stayed with the victims and their two young children at a residence in Narrabundah (the residence), from 5 October 2020 until 10 October 2020, when he was asked to leave.
When he moved out, the offender left the Ute there as the vehicle was unregistered.
On Wednesday 3 November 2020, the offender and two others travelled from Batemans Bay, NSW to the ACT for the purpose of collecting the Ute from the residence.
The offender arrived at the residence at about midday in a silver Holden Commodore (Commodore), accompanied by a female, who was the ex-partner of the offender, and her son. A dispute arose between the victims and the offender as to the ownership of the utility and its whereabouts.
The offender left the residence and went to the female’s home. She exited the vehicle with her son. The offender then travelled back to the residence in the same vehicle (the Commodore), with another male person driving.
At about 2:40pm on the same day, the offender arrived at the residence with the other male person. He exited the passenger side of the vehicle and called out to Mr Hughes to exit the house.
The offender walked up to an aluminium gated fence at the side of the house and kicked the gate causing a large dent and hole. He moved to the front yard where a vehicle owned by Ms Parsons (a blue Ford Focus) was parked. The offender jumped onto the roof and kicked the windscreen of that car. The damage included a large dent to the roof and a large foot sized hole and cracks in the front windscreen, rendering it temporarily undriveable, on the agreed facts.
Mr Hughes and Ms Parsons came outside.
The offender reached into the Commodore and pulled out a sawn-off rifle, described as approximately 50 centimetres in length, having a black barrel, wooden stock and wooden rest under the barrel.
The offender drew the rifle in the direction of Mr Hughes causing him and Ms Parsons to run inside the residence in immediate fear of their lives.
As Mr Hughes was running towards the house, the offender discharged the firearm in the direction of Mr Hughes. The projectile impacted with the front doorway area of the house.
Mr Hughes yelled out to warn his family, telling them to get into the bathroom. Ms Parsons located their two children in the house and hid in the bathroom.
As they were doing so, Mr Hughes made a triple zero call to police, reporting the incident. The triple zero call is approximately seven minutes long, and captures audio of a large portion of the incident, including loud bangs. It was not disputed that they were the sound of gun shots. During the call Mr Hughes said: "He's got a gun, he's at my house, he's got a gun" .... "Get in the bath, get in the bath". The operator asked who has the gun, Mr Hughes responded "Brodie Antoniak".
The offender discharged several more shots towards the front of the residence, before returning to the Commodore and leaving the residence.
Mr Hughes heard the shots had stopped and looked out the window. He saw the Commodore driving away. He watched as the vehicle conducted a U-turn to come back towards the residence. He turned and ran, yelling at his family to get back into the bathroom. Mr Hughes feared that the offender was returning to shoot him and his family.
The Commodore stopped outside the residence and the offender discharged two further rounds at the house. This coincided with both Mr Hughes and Ms Parsons hearing two projectiles impacting with the front of the house.
The offender then left the area in the Commodore with the other male person. They drove to a place near Coppins Crossing and concealed the firearm, then drove to an address in Uriarra to conceal the Commodore. The Commodore was later returned to an address in Wright, where the ex-partner of the offender lived and where the offender was arrested. The firearm was later recovered by police.
A short time after the incident at the residence, the offender sent two short message service (SMS) messages to Mr Hughes. The first message said "you've got till 5am to return the ute". The second message said "5am maggot". Mr Hughes believed these messages meant that the offender was going to return to the residence and was fearful that he would return with the firearm.
Police later arrived at the residence and observed damage to the front of the house, including holes in glass windows and wooden window frames consistent with a projectile from a firearm. A total of five projectiles entered the premises – four through the master bedroom window and one through the window adjacent to the front door.
One of the neighbours, Mr Bilal Mahmood, witnessed part of the incident. He was asleep in his home and woke to the sound of arguing. He heard yelling and the words "I'm going to shoot you". Mr Mahmood looked out his window and saw the offender jump on top of the blue Ford Focus.
The firearm has been examined by AFP Firearm examiners. The firearm has been identified as a Stirling Model .22 long rifle calibre repeating rifle (bolt action). During the examination, test firing of the firearm was conducted. AFP Firearm examiners determined the spent casings located at the Narrabundah address and the spent casing located within the firearm were both fired from that particular fireman.
The serial number was recovered and identified as A006527. The firearm has been confirmed as a stolen firearm from an address in NSW, during a break and enter incident. The offender is not and has never been the holder of a firearms licence in the ACT or another state or territory.
The proceedings and the pleas of guilty
The offender was arrested and taken into custody on 4 November 2020 and has remained in custody since that date. He pleaded guilty to the above offences on 7 July 2021. That was at an early stage of the proceedings. There had been a number of mentions but there were negotiations between the Crown and the offender and the plea was entered at the first opportunity after an agreement about the charges was reached. Having regard to the utilitarian value of the pleas, it is appropriate to discount the sentences that I would otherwise have imposed by 15%, having regard to the matters set out in s 35(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
Such a reduction is what I would describe as modest, rather than “significant”, as that word is used in s 35(4) of the Sentencing Act. The statement of agreed facts that was before the Court contained information about each of the offences that indicated the prosecution’s case for each of the offences was overwhelmingly strong. This included:
(a)contemporaneous eye witness identification of the offender, who was known to the victims, in the emergency call Mr Hughes made to police;
(b)the corroborating evidence of the conduct by an independent neighbour who also made a contemporaneous statement to police; and
(c)a detailed expert forensic report (which was before the Court without objection).
The statement of agreed facts also set out the evidence obtained through a warrant issued after the incident occurred, which separately identified both the offender and the conduct.
With the agreement of the offender, both CC2020/12904 and CC2020/12905 contain charges that have been rolled up. The Crown provided assistance as to the Court’s task when dealing with such charges. The principles are not controversial and were described in detail by Refshauge J in R v Forrest (No 2) [2017] ACTSC 83 at [161]-[164], whose summary I respectfully adopt with appreciation. The approach was recently summarised again by his Honour in R v Hancock [2021] ACTSC 52 at [28] as follows:
…
· for sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
· nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
· the sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
· the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
That is the approach to be followed in respect of the present offender.
Objective seriousness
The applicable principles are again uncontroversial between the parties, whose written submissions have been of significant assistance when considering the relevant authorities. I have incorporated them in what follows. The sentencing court must consider where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the worst category: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
That task is an objective one. It is determined without reference to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].
After-effects of offending are considered separately in the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].
Discharge of firearm causing another person to reasonably fear for his or her safety
In R v Shearer [2020] ACTSC 100 (Shearer), Mossop J summarised the considerations relevant to assessing the objective seriousness of an offence under s 27(3)(d) of the Crimes Act at [69]:
69.The offence under s 27(3)(d) of the Crimes Act occurs where a person “intentionally and unlawfully ... discharges any loaded arms at another person or so as to cause another person reasonable apprehension for his or her safety”. Section 27(3) also covers a diverse range of other circumstances involving choking, drugs, offensive weapons, explosives, traps, conveyances and road traffic devices. While a number of the other provisions refer to “circumstances likely to endanger human life or cause a person grievous bodily harm”, paragraph (d) extends to the creation of a reasonable apprehension for the victim’s safety. In that sense it might be considered to be a lesser example of the variety of matters covered by the section. Yet the threshold for the operation of the paragraph is that there are “loaded arms” being discharged and hence it is dealing with a circumstance which is necessarily inherently likely to endanger human life or cause a person grievous bodily harm. It is, however, clear that it is the reasonableness of the apprehension for safety that is required to be proved, rather than the likely endangerment of life or causing of grievous bodily harm, and hence it does involve a lower threshold. This must be taken into account when assessing the objective seriousness of the offending conduct in the context of the offence provision as a whole.
I have taken into account the consideration of where the particular conduct to which the offender has pleaded guilty fits within the other categories of the relevant section. I have also considered the following factors:
(a)The offence occurred in a residential area, at the victims’ home, a place where they were entitled to feel safe.
(b)There was a degree of planning, in that the offender drove away from the residence and then returned, armed, on the same day. He also had opportunities to withdraw after that point but chose not to do so. First, while at the residence, the offender did not initially carry the firearm. Only when Mr Hughes and Ms Parsons came outside did he then reach inside the vehicle he had arrived in, retrieve the firearm, and then discharge it. Second, the offender left residence, but having driven only a short way down the street, he returned and fired an additional two shots.
(c)A total of five bullets entered the house: four through the master bedroom and one through the window adjacent to the front door.
I accept the Crown’s submission that the offending in relation to the discharge of the firearm here was both brazen and extremely dangerous. It carried a significant risk of serious injury or death to the occupants of the house. I have not accepted the Crown’s submission that the offender knew the two children were at risk when he fired in the direction of Mr Hughes as he ran into the house, but he certainly knew that Mr Hughes and Ms Parsons were at risk when he commenced firing.
I do not accept the submission made on behalf of the offender that there was no careful aim, or that the firearm was discharged somewhat indiscriminately. The statement of agreed facts records:
As Mr Hughes was running towards the house, the offender discharged the firearm in the direction of Mr Hughes. The projectile impacted with the front doorway area of the house.
The bullets were all then fired in the direction of the house where the offender knew Mr Hughes and Ms Parsons were located because he had seen them run inside. The second round of shots was also fired at the house. The offender has not been charged with s 27(3)(c) of the Crimes Act, which is one of the provisions Mossop J had in mind in Shearer when his Honour referred at [69] to offences involving “circumstances likely to endanger human life or cause a person grievous bodily harm”. However, that does not mean that the offender’s shots were indiscriminately fired into the air.
The offender’s voluntary intoxication and the fact that he was affected by drugs at the time do not mitigate his responsibility for the conduct. The objective seriousness of this offence is high.
Firearm offence
The use of the prohibited firearm is also objectively very serious. Firearms offences are matters of significant objective criminality: R v Mikac [2018] ACTSC 269 (Mikac) at [39].
Section 42 of the Firearms Act covers both possession and use, with varying maximum penalties depending on how many firearms are possessed or used.
A number of authorities provide guidance as to matters that may be relevant in assessing the objective seriousness of the offence. They include R v Mitchell [2016] ACTSC 85 (Mitchell) at [85] and the authority there-cited. The relevant passage in Mitchell was also more recently cited in R v Zdravkovic (No 3) [2020] ACTSC 258 at [10].
The objective seriousness may be assessed by reference to a number of factors:
(a)Possession or use of the prohibited firearm.
(b)Nature of the prohibited firearm.
(c)Purpose for possession or use of the prohibited firearm.
(d)How the prohibited firearm came into the possession of the offender.
(e)The length of time that the prohibited firearm was in the possession of the offender or used by the offender.
(f)The storage of the prohibited firearm.
(g)Whether the prohibited firearm was loaded or not.
The particular offence under s 42 of the Firearms Act, with a maximum penalty of 10 years’ imprisonment, covers offences of up to two firearms. The offender used 1 firearm. However, the offence was not one involving bare possession. The prohibited firearm was used and was used for a criminal purpose. It was obviously also loaded.
The nature of the firearm was that it had been shortened. I accept the Crown’s submission that there was no lawful reason given for the offender otherwise having in his possession a shortened firearm, which may be more easily hidden. The expert evidence on sentence was that shortening of firearms removes the usual safety mechanisms of the firearm.
Balanced against this is the fact that there is no suggestion of wider criminal activity in connection with the firearm.
There was some evidence as to how the firearm came into the possession of the offender, contained in the Pre-Sentence Report (PSR). The offender stated that he had obtained the firearm some years ago, however, did not know its origin and had not registered the firearm himself as a holder for that reason. In those circumstances, I have not drawn any inference against the offender from the fact that the firearm transpired to be stolen.
Taking all those matters into account, I consider the offence to be of medium objective seriousness.
Damage property
In relation to the offence of damaging property, the circumstances have already been set out above. The offender returned to the victims’ residence and damaged two separate items of property. There is no doubt that the offender intended to cause damage to the two items. It takes some effort for a person to position themselves on top of a car to the point where they are able to jump on the roof and cause the damage depicted in the photographs before the Court. The damage to the gate was minor but the damage to the car was substantial, rendering it undriveable, at least on a temporary basis.
Even so, having regard to the range of circumstances that may fall within an offence under s 403(1) of the Criminal Code, the objective seriousness of the offence is low.
Victim impact statement
The victim, Mr Hughes, provided a victim impact statement on behalf of himself and his partner. The impact may properly be described as traumatic. The victims explain the psychological consequences they now suffer, in terms of reliving the incident almost every day, and in particular, the fear of how close their children came to being seriously injured.
I have referred above to the entitlement of a person to feel safe in their own home. The significance of this should not be underestimated and it has been borne out by the fact that the victims have had to move from their Narrabundah address as a result of the house itself being a constant reminder of what happened to them.
The victims each have nightmares, waking up out of breath and sweating. They each have had to seek counselling. They each have suffered anxiety attacks. Mr Hughes refers to loud bangs bringing on anxiety for him, and Ms Parsons is said to barely leave the house because of her anxiety.
I accept the impact on the victims has been substantial and is ongoing.
Subjective circumstances
The offender was born in 1989 and is 32 years of age. He does have a relevant criminal history, in that there are four prior entries for offences of damaging property, and entries for offences of violence. Accordingly, it cannot be said that the offender’s behaviour was an uncharacteristic aberration or an isolated occurrence. In that regard, I have applied Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [38], where Refshauge J emphasised the purpose in considering an offender’s criminal record by reference to what was set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8. The passage is well known, and it is unnecessary to repeat it again here. There is limited room for leniency, having regard to the offender’s criminal history.
The offender’s background includes leaving home at age 14 and maintaining a transient lifestyle. He does have close relationships with his brother and mother, which I accept are pro-social supports in the community (to use the language of the author of the PSR). His employment has more recently been in the building industry, and he has been self-employed as a tiler for several years.
The PSR refers to the offender’s clear drug and alcohol problem. That fact is accepted by the offender. He says that he has ceased all substance use since being in custody and I have taken that as an indication of a willingness to rehabilitate. There was also a reference to the offender’s enjoyment of gambling on poker machines. Again, the offender claims to have broken the habit while in custody. Of course, whether these good intentions translate into a more socially positive lifestyle when he is not in custody remains to be seen.
The offender was otherwise reported as being in good physical health. He had suffered a psychological breakdown in 2016 and has experienced anxiety and depression. He has struggled with issues around anger management but described his mental health as presently stable.
The PSR records that the offender was furious at the time the offences occurred. He felt betrayed when he was informed that one of the victims had disposed of his ute. The offender has written a letter to the Court. In it he accepts there is no excuse for what he has done. He accepts full responsibility for his actions. He says what he did was reckless and stupid. He further writes that he has had a lot of time to reflect (while in custody) on the life that he has been living. He says he has been “living a life I didn’t want to live and self-sabotaging mostly with alcohol and other substances”.
The offender is a single father of two children. He has had limited or irregular contact with his children. He expresses a desire to turn his life around and give his children the life they need and deserve. I accept the offender has demonstrated a degree of remorse for his actions.
Comparable Cases
The Crown referred the Court to a number of cases by way of comparison, which I have taken into account, and in doing so, reminded the Court that current patterns of sentencing do not cap the upper and lower ranges of a possible sentence: DPP (Vic) v Dalgliesh [2017] HCA 41; 262 CLR 428 at [49], Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]. Noting that comparable cases from within the same jurisdiction are to be preferred (R v Duffy [2014] ACTCA 53; 297 FLR 359 at [92]), the cases included R v Sharp [2019] ACTSC 175 (Sharp); R v Pattman [2017] ACTSC 331 (which was considered as a comparable case in Sharp); and R v Hallam [2021] ACTSC 141.
Passing reference in oral submissions was made to the ACT Sentencing Database. Given that no party placed any reliance on a particular sentencing pattern emerging from the statistics included in that database, I have not given weight to that information. I consider it to be of little assistance in light of the seriousness of the offences and the circumstances here.
Sentencing Considerations
To the extent that the considerations under s 33 of the Sentencing Act are relevant, they have been discussed in what has been set out above. The Court must separately have regard to the relevant sentencing purposes in s 7 of the Sentencing Act.
In relation to firearms offences, the significant sentencing considerations have been referred to in Mikac at [36] per Murrell CJ. I respectfully adopt what was there set out, namely, “the most prominent sentencing considerations are general deterrence and other considerations that relate to ensuring public safety, such as accountability, denunciation and protection of the community from harm”.
Specific deterrence is also of some concern here. The author of the PSR expresses a view that the offender is at a “medium high risk of general reoffending”. His criminogenic risks relate to financial strain due to gambling, a lack of stable accommodation, unaddressed illicit substance and alcohol use, anger management and attitude toward offending behaviour.
The offender has submitted that in the present case, the promotion of the offender’s rehabilitation is equally important. This consideration features in the context of s 10 of the Sentencing Act, which provides that a person should not be sent to prison except as a last resort.
It was accepted by the offender that a sentence of imprisonment is the only appropriate sentence with respect to the offences. However, it was then submitted that the avenue that would best promote the offender’s rehabilitation might be taken into account in terms of how a prison sentence might be served. Particular emphasis was placed by the offender’s legal representative on the desirability of an intensive correction order (ICO) in achieving such rehabilitation. The Court’s attention was also drawn to a statement made by Penfold J in R v EL [2016] ACTSC 241 at [43] that: “it would be curious if intensive correction orders were only available to people who really did not need any help”.
Sentences
I consider that a sentence of full-time imprisonment is the only appropriate sentence for each of the three offences.
The PSR records that the offender has been assessed as not suitable for an ICO, because of his unaddressed illicit substance and alcohol use and the lack of a fixed address available for assessment.
It is plain that rehabilitation is always in the long-term public interest, but it can be achieved in different ways and I am separately satisfied that an ICO is not the appropriate sentence here. It does not reflect the gravity of the two firearms offences.
Further, the offender might be able to overcome the accommodation issue that is a hurdle for such an alternative, but I am not persuaded that the risk involved in serving a sentence in the community can be appropriately managed for this offender, when his drug and alcohol issues have not yet been properly addressed. Good intentions after the event and abstinence while in custody are positive steps, but they are only part of the equation and combined with the need for the offender to also obtain assistance with his anger management which was a feature of the offences, the sentence that will better balance the different sentencing objectives is a custodial one. Such a sentence will now provide him with access to programs targeting drug and alcohol abuse and gambling, with a view to reducing that risk.
I consider the offender’s rehabilitation will be better managed if he has an opportunity to complete the relevant programs while in custody for a period of time, and then to have a period of close supervision, through a shortened non-parole period.
I have had regard to the totality principle in structuring the sentences, as well as the principles of cumulative and concurrent sentence orders: see O’Brien v R [2015] ACTCA 47 at [26] and the cases there-cited. It is unnecessary to restate the principles here. There was some overlap in the use of the prohibited firearm and the discharge of the firearm causing another person to reasonably fear for his or her safety. The three incidents also arose from a single episode or course of conduct. Accordingly, it is appropriate that there be a degree of concurrence in the sentence for each of the three offences.
The sentence will also need to be backdated to take account of the time that the offender has already spent in custody, which was wholly referable to the offending that is the subject of the present sentence.
In relation to the charge of discharging the firearm causing another person to reasonably fear for his or her safety, the sentence will be 20 months.
In relation to the charge of use of a prohibited firearm, the sentence will be 10 months. It will be cumulative as to six months upon the previous sentence.
In relation to the charge of damage to property, the sentence will be 4 months. It will be cumulative as to 2 months upon the previous sentence.
This gives a total aggregate sentence of 26 months. Having regard to what I have said about the need for a period of close supervision while the offender is in the community, the non-parole period will be 18 months.
Orders
The orders of the Court are:
(1) On the offence of CC2020/12904, being the discharge of a firearm causing another person to reasonably fear for his or her safety, the offender is convicted and sentenced to imprisonment for 20 months (reduced from 24 months on account of his guilty plea), starting on 4 November 2020 and ending on 3 July 2022.
(2) On the offence of CC2020/13905, being the use of a prohibited firearm, the offender is convicted and sentenced to imprisonment for 10 months (reduced from 12 months on account of his guilty plea), starting on 4 January 2022 and ending on 3 November 2022.
(3) On the offence of CC2020/12905, being intentionally cause damage to property, the offender is convicted and sentenced to imprisonment for 4 months (reduced from 6 months on account of his guilty plea), starting on 4 September 2022 and ending on 3 January 2023.
(4) The non-parole period is to commence on 4 November 2020 and end on 3 May 2022.
| I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam. Associate: Dominic Page Date: 13 September 2021 |
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