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R v Antoniak

R v Antoniak

Case [2021] ACTSC 228 9 September 2021

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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 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 35 Criminal Code 2002 (ACT) s 403 Firearms Act 1996 (ACT) s 42
Cases Cited:	Barbaro v The Queen [2014] HCA 2; 253 CLR 58 DPP (Vic) v Dalgliesh [2017] HCA 41; 262 CLR 428 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 McLeod v The Queen [2018] ACTCA 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O’Brien v R [2015] ACTCA 47 R v Duffy [2014] ACTCA 53; 297 FLR 359 R v EL [2016] ACTSC 241 R v Forrest (No 2) [2017] ACTSC 83 R v Hallam [2021] ACTSC 141 R v Hancock [2021] ACTSC 52 R v Kilic [2016] HCA 48; 259 CLR 256 R v Mikac [2018] ACTSC 269 R v Mitchell [2016] ACTSC 85 R v Pattman [2017] ACTSC 331 R v Sharp [2019] ACTSC 175 R v Shearer [2020] ACTSC 100 R v Zdravkovic (No 3) [2020] ACTSC 258 Veen v The Queen (No 2) (1988) 164 CLR 465
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Antoniak

Details

AGLC: R v Antoniak [2021] ACTSC 228
Case: [2021] ACTSC 228
Decision Date: 9 September 2021

CaseChat Overview and Summary

In the case of R v Antoniak, the defendant, Antoniak, was convicted of intentionally and unlawfully discharging a loaded firearm so as to cause another person reasonable apprehension for their safety, intentionally causing damage to property, and using a prohibited firearm without a licence or permit. These offences were committed by Antoniak when he discharged an unlicenced firearm at a residential house while the occupants were inside and subsequently damaged property in the process.

The legal issues before the court involved the interpretation and application of the relevant criminal statutes pertaining to the intentional discharge of a firearm, causing damage to property, and the use of a prohibited firearm without a licence or permit. The court had to consider the severity of the offences committed by Antoniak, the circumstances in which they were committed, and the appropriate sentence to be imposed in accordance with the statutory provisions and sentencing principles.

The court, after considering the evidence and arguments presented, concluded that the offences committed by Antoniak were serious and warranted a significant penalty. The court found that Antoniak's actions demonstrated a blatant disregard for the safety of others and the rule of law. In reaching its decision, the court took into account the gravity of the offences, the circumstances in which they were committed, and the need to deter similar conduct in the future. The court imposed a sentence of imprisonment on Antoniak, reflecting the seriousness of his crimes and the need to protect the community.

The court made several orders, including that Antoniak be imprisoned for a specified term, that he pay a fine, and that he be subject to other conditions such as a weapons prohibition order. The orders reflect the court's determination to impose a penalty that is commensurate with the seriousness of the offences and to ensure that Antoniak is held accountable for his actions.

Orders

Orders of the court

See [79]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Antoniak [2021] ACTSC 228

Most Recent Citation

R v Celeski (No 2) [2022] ACTSC 393

Cases Citing This Decision

Director of Public Prosecutions v Nurzynski [2024] ACTSC 176
Citation 1

…R 22 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O’Brien v The Queen [2015] ACTCA 47 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Antoniak [2021] ACTSC 228 R v Antoniak [2021] ACTSC 228 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 R v Buckman (1987) 47 SASR 303 R v Curtis (No 2) [2016]…
Kristiansen v Yeats [2022] ACTSC 351
Citation 2 (Para 27)

…In respect of the firearms, the Magistrate cited the decision of McWilliam J in R v Antoniak [2021] ACTSC 228, in which her Honour held that the objective seriousness of a firearm offence will be affected by a number of factors, including, inter alia , “ whether the prohibited firearm was loaded or not .”…
R v Celeski (No 2) [2022] ACTSC 393
Citation 3

…[2011] HCA 4; 243 CLR 506 Kajevic v Noble [2021] ACTSC 67 Mack v The Queen; Mack v The Queen [2009] NSWCCA 216 R v Afacan [2015] VSC 255 R v Antoniak [2021] ACTSC 228 R v Antonovic (No 3) [2021] ACTSC 338 R v Blaskovic [1999] FCA 1306 R v Butler [2020] ACTSC 170 R v Celeski [2020] ACTSC 310 R v Celeski [2022] ACTSC…

See all citing cases →

Cases Cited

R v Hallam [2021] ACTSC 141
Citation 1 (Para 1)

…es 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.…
R v Hancock [2021] ACTSC 52
Citation 2 (Para 1)

…SC 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:…
R v Zdravkovic (No 3) [2020] ACTSC 258
Citation 3 (Para 1)

…] 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].…
R v Shearer [2020] ACTSC 100
Citation 4 (Para 1)

…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]:…
R v Sharp [2019] ACTSC 175
Citation 5 (Para 1)

…omparable 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.…
McLeod v The Queen [2018] ACTCA 59
Citation 6 (Para 1)

…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].…
R v Mikac [2018] ACTSC 269
Citation 7 (Para 1)

…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].…
DPP v Dalgliesh (a pseudonym) [2018] HCA 41
Citation 8 (Para 1)

…nded 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 preferre…
R v Pattman [2017] ACTSC 331
Citation 9 (Para 1)

…sdiction 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.…
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
Citation 10 (Para 1)

…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 t…
R v Forrest (No 2) [2017] ACTSC 83
Citation 11 (Para 1)

…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] AC…
R v Kilic [2016] HCA 48
Citation 12 (Para 1)

…cts 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].…
R v EL [2016] ACTSC 241
Citation 13 (Para 1)

…ensive 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”.…
R v Mitchell [2016] ACTSC 85
Citation 14 (Para 1)

…r 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] ACT…
Kelly v Ashby [2015] ACTSC 346
Citation 15 (Para 1)

…ot 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 T…
O'Brien v The Queen [2015] ACTCA 47
Citation 16 (Para 1)

…ard 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 th…
R v Duffy [2014] ACTCA 53
Citation 17 (Para 1)

…aro 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 c…
Barbaro v The Queen [2014] HCA 2
Citation 18 (Para 1)

…entencing 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…
Muldrock v The Queen [2011] HCA 39
Citation 19 (Para 1)

…ithout 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].…
Veen v The Queen (No 2) [1988] HCA 14
Citation 20 (Para 1)

…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 c…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 10, 33, 35, 7
5 mentions (from Para 1)
Crimes Act 1900 (ACT) 27
2 mentions
Firearms Act 1996 (TAS) 42
2 mentions