R v Hallam
[2021] ACTSC 141
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hallam |
Citation: | [2021] ACTSC 141 |
Hearing Date: | 2 February, 19 May 2021 |
DecisionDate: | 2 July 2021 |
Before: | Burns ACJ |
Decision: | See [49]–[55] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – discharge firearm at building – unauthorised use prohibited firearm – attempt conceal evidence – cultivate cannabis plant – pleas of guilty –where victim had pre-existing health condition – consideration of moral culpability where wrongly led to believe an assault had occurred – consideration of intentionality of discharge of firearm – consideration of ADHD and Specific Learning Disorder – where lack of relevant criminal history in recent years |
Legislation Cited: | Supreme Court Act 1933 (ACT) |
Parties: | The Queen (Crown) Benjamin Darrell Hallam (Offender) |
Representation: | Counsel S Naidu (Crown) F Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich (Offender) | |
File Numbers: | SCC 239 of 2020; SCC 240 of 2020 |
Burns ACJ:
Benjamin Hallam, on 21 October 2020 in the ACT Magistrates Court, you entered a plea of guilty to one charge alleging that on 30 May 2020 you recklessly inflicted grievous bodily harm on Meli Tukuca (CC 2020/8810), an offence which carries a maximum penalty of 13 years' imprisonment. You were subsequently committed for sentence to this Court.
On 21 October 2020 you also entered pleas of guilty in the ACT Magistrates Court to four offences:
(a)
an offence of discharging a firearm at a building on 30 May 2020
(CC 2020/6658), carrying a maximum penalty of 10 years' imprisonment;
(b)
an offence of unauthorised use of a prohibited firearm on the same date
(CC 2020/7914), carrying a maximum penalty of 10 years' imprisonment;
(c)
an offence of attempting to conceal evidence on 30 May 2020
(CC 2020/7917), carrying a maximum penalty of 7 years imprisonment, a fine of 700 penalty units, or both;
(d)an offence of cultivating cannabis plants (CC 2020/7916), carrying a maximum penalty of 2 years' imprisonment.
These last four charges were transferred to this Court pursuant to the provisions of the Supreme Court Act 1933 (ACT) as related offences. It is now my responsibility to impose sentence for these offences.
The facts
A comprehensive Agreed Statement of Facts was tendered at the sentence hearing. I will not recite that Agreed Statement of Facts. The following summary will be sufficient.
On the afternoon of 30 May 2020, you attended a party at an address in Dunlop in the ACT. Also at the party was your partner, Isabella Denis and a friend of yours, Paul Fredrickson. All three of you consumed alcohol and were moderately to heavily affected by the alcohol that you had consumed. During the party, Ms Denis sought to argue with you, causing you to withdraw to the garage of the premises with Mr Fredrickson. This angered Ms Denis who left the party to visit a friend who resided at 72 [redacted].
At about 8:15pm that evening the victim was at his home at 66 of the same street [redacted]. Also present with him were his wife, his 16 year old son and his 8 year old granddaughter.
About this time, Ms Denis knocked on the victim's front door looking for her friend's house. The victim’s house was located on the same street as Ms Denis’s friend’s address in Dunlop. Ms Denis realised that she was at the wrong house, left the property and lay down on the road in front of the victim's house. The victim and his wife were concerned that Ms Denis may be hit by a car so they approached her and asked her if she was okay. She told them that she was fine and to “fuck off”.
The victim and his wife continued, unsuccessfully, to try to persuade Ms Denis to move off the road, concerned that a vehicle may approach and hit Ms Denis. The victim lifted her, carried her off the road, to the nearest footpath and put her down. Ms Denis became enraged, stood up and stuck the victim to the left side of his face. The victim and his wife then withdrew back into their home while Ms Denis yelled obscenities at them. She kicked the victim's letterbox, causing it to fall over. The victim told Ms Denis that he was going to call the police, at which time she ran away. She then went to her friend's home at 72 [redacted].
At that residence, she told her friends that she had been “bashed by a black guy”. Ms Denis borrowed her friend's phone to contact you and told you that she had been “bashed by five black guys” and informed you of her whereabouts. You told Mr Fredrickson that you were going to see Ms Denis to see what was going on and asked him to come and help you. Based upon what you told Mr Fredrickson, he understood that there may be a physical confrontation.
At about 8:58pm that evening you and Mr Fredrickson attended the address at 72 [redacted] in your vehicle, a white Toyota Landcruiser. Mr Fredrickson retrieved a baseball bat from within your vehicle and you and he then approached the front door where you spoke briefly with Ms Denis and her friend. You and Mr Fredrickson then walked towards the victim's address at 66 [redacted]. On the way you retrieved a firearm from the driver's side of your vehicle. This was a 12-gauge-pump-action shotgun with a shortened barrel and stock.
At that time, the victim was seated at a table in the family room of his home. His wife was in the kitchen, his 16 year old son was in his bedroom and his 8 year old granddaughter was in the loungeroom watching television.
Mr Fredrickson approached the victim's front door and smashed the glass window to the side of the wooden front door with the baseball bat. The victim's 8 year old granddaughter was seated only metres away from the front door and she started screaming, causing the victim's wife to run to her. The victim's wife saw Mr Fredrickson standing by the front door.
The victim approached the front door to confront Mr Fredrickson who was holding the blue coloured baseball bat. At this time the victim's 16 year old son also came out of his bedroom to investigate the noise. Fearing for their safety, the victim's wife took her granddaughter and ran out the back door, through their backyard and sheltered in a neighbour's property.
The victim reached out and grabbed the baseball bat to pull it away from Mr Fredrickson through the broken window. A brief struggled ensued. Mr Fredrickson pulled the bat free and turned to flee when he saw you standing to his left holding the shotgun. You then fired one shot towards the front door. A later forensic examination of the scene indicated that you were holding the firearm at waist height about
2.5 metres away from the front door.
The victim was standing behind the front door when he heard the shotgun discharge, and he felt a blow to the left side of his chest. He moved back inside where he was assisted by his son who observed blood coming from the victim's chest.
You and Mr Fredrickson then ran away. While fleeing the scene you ran past West Belconnen Pond and Mr Fredrickson threw the baseball bat into the pond to dispose of it. The two of you then proceeded further into the Dunlop Grasslands Nature Reserve to find a location to conceal the shotgun. You concealed the shotgun in a pond within the reserve. You and Mr Fredrickson then separated and returned to your respective homes separately.
The victim was transported by ambulance to hospital to be treated for a shotgun wound to the left side of his chest. The victim had a pre-existing cardiac condition which placed him at high risk of cardiac complications such as myocardial ischemia and cerebrovascular accident. During an initial assessment conducted by ambulance officers, the victim was significantly hypertensive and tachycardic. On examination, he was found to have a superficial left chest and upper abdominal wall abrasions with associated metal foreign bodies, being shotgun pellets, with more than 20 pieces embedded in the soft tissue plane extending to the abdominal musculature.
He was also noted to have superficial abrasions to his left upper arm with two shotgun pellets lodged in the soft tissue plane. Without medical intervention, the victim's recovery would have been significantly compromised due to the risk of soft tissue infection and increased susceptibility to life threatening complications due to his pre-existing health issues. The shotgun pellets lodged in the victim's chest will likely remain in his body for the remainder of his life and he will have permanent scarring at the chest, abdomen and left upper arm.
A subsequent search of the area around the victim's home located the baseball bat used by Mr Fredrickson floating in West Belconnen Pond. After he was arrested, Mr Fredrickson voluntarily agreed to show police the location of the shotgun which you had used in this incident. He took police to the Dunlop Grasslands Nature Reserve and showed them the location of the firearm.
Police subsequently conducted a search of your premises during which they located six large cannabis plants growing in a bedroom dedicated to a hydroponic set up, complete with screened-off windows and a plastic bag containing a large amount of cannabis. The room where the cannabis plants were located had large hydroponic lights, ventilation ducts and white plastic screening which sunlight could not penetrate. The plants were seized and were later found to weigh 9.249 kilograms.
At the sentence hearing it was submitted on your behalf that the shotgun discharge which wounded the victim had been accidental. You gave evidence at the sentence hearing and evidence was also given by a firearms expert who had examined the shotgun that you used in this incident. You gave evidence that you had taken the shotgun with you to the victim's house in order to scare the occupants of that residence in circumstances where you understood that those occupants had assaulted your former partner. You said that you raised the shotgun and attempted to fire it into the air when you were in front of the victim's front door. You said that the gun did not discharge, at which time you brought it down to waist level and manipulated the slide mechanisms and then pulled the trigger again. It was your evidence that in doing so you had not intended to discharge the firearm at the victim.
Your version of this evidence is consistent with the evidence of the expert and on the balance of probabilities I accept that you did not deliberately discharge the firearm in the direction of the victim. That does not, however, mean that this is not a serious example of this type of offending. Your actions in manipulating the slide mechanism of the shotgun and depressing the trigger after the first malfunction was highly reckless. You knew that the shotgun was loaded and the discharge of such a firearm in the direction of a residence in which you knew people were located carried a very high risk of serious injury or death being occasioned to a person within the house.
I accept that the physical injuries sustained by the victim would not be categorised as the most serious form of grievous bodily harm. However, those injuries were inflicted upon a middle-aged man with pre-existing health conditions. The fact that you did not know the age of the victim or that he had a pre-existing health condition is not to the point. Indeed, had you known of those matters, they would have constituted a serious aggravating circumstances calling for greater punishment.
Victim Impact Statements
A Victim Impact Statement prepared by the victim was read during the sentence hearing. In that statement he speaks of the shock he felt when Mr Fredrickson smashed the window at the front of the house. He went to protect his family and while doing so, was shot. As the shotgun pellets cannot be removed from his body, he feels that he will have to live with the results of this offence for the rest of his life. He stated that he was off work for a considerable period of time and had to undergo medical treatment. He further stated that his granddaughter no longer feels safe without him and his wife around. He said that the incident has left a lasting effect on his health, life and family.
A Victim Impact Statement was also prepared by the victim's wife. She also speaks of the shock and fear she experienced during this offence. She took her granddaughter and ran from the scene to protect her granddaughter. She ran to a neighbour's house and was very concerned what might have happened to the victim. She was later told that the victim, her husband, had been shot which was a great shock to her because she knew that the victim had just had open heart surgery. For the first two months after this offence, she was unable to continue with some of her regular activities. She has become anxious with regard to the wellbeing of her children and her granddaughter. Her granddaughter has also become very anxious. The victim's wife stated that this offence has had a lasting effect on her family both emotionally and mentally. It has also taken a “huge financial toll” on the family. It is apparent that this offence has had a significant, lasting and detrimental effect upon the victim and his family.
Moral culpability
Your moral culpability for this offence is not reduced by reason of the fact that you were wrongly led to believe that the occupants of the house that you went to had earlier assaulted your partner.
You took no steps to report that alleged assault to the police for them to investigate. We now know that no such assault took place. Even if it had, it could be no justification for you descending, in company and armed with a loaded shotgun, on the house of those you believed whom may have been involved in the assault.
The offence was not spontaneous. You had an opportunity to consider your actions before you obtained the shotgun from your vehicle and while you walked to the victim's house. Your voluntary intoxication does not mitigate your responsibility for this conduct. Your moral culpability for this offence is high.
Subjective features
You have a previous criminal history including convictions or findings of guilt with regard to offences of assault and assault occasioning actual bodily harm. These offences occurred nearly 20 years ago. More recently, you have been convicted of driving offences, including drink driving, driving whilst disqualified and performing a burn-out.
The absence of offences of violence over the period of approximately 20 years prior to this offence entitles you to a degree of leniency in sentencing for the present offence of recklessly inflicting grievous bodily harm. Your lack of relevant criminal history in recent years also entitles you to leniency regarding the other offences to which you have entered pleas of guilty.
You are currently 33 years old. You have had limited contact with ACT Corrective Services in the past and your compliance with community-based supervision orders was described as satisfactory.
A Pre-Sentence Report states that you reported a stable upbringing with no exposure to family violence, mental health or drug and alcohol abuse in the family home. You stated that you have been with your current partner, Ms Denis, for approximately four years and there is one child to that relationship. You stated that care of that child is shared.
You told the author of the Report that you have your own home that is currently under mortgage. You have accommodation available to you in the ACT. You struggled with formal education due to dyslexia and ADHD. You left school shortly after commencing Year 9 and subsequently you have worked as a bricklayer. You continue to work in that field.
You previously consumed alcohol to problematic levels but from the age of 25 you significantly reduced your alcohol intake to one night per week and at social events.
You reported cannabis use at age 13, which increased to daily use. You reported use of other drugs such as cocaine, MDMA, Lysergic acid diethylamide (LSD) and methamphetamine on a recreational basis from age 18. You continued to use various substances infrequently up to the time of the preparation of the Pre-Sentence Report.
You told the author of the Report that you had consumed both alcohol and cocaine on the day of these offences. You were subject to urinalysis testing in July and August 2020 and January 2021 with all tests returning a negative result.
The author of the Report assessed you as a medium/low risk of general re-offending. Your criminal risks related to alcohol and drug abuse, antisocial associates and your attitude towards offending behaviour. You were assessed as suitable for a range of sentencing options including an Intensive Correction Order.
Part of the material which was placed before me was a letter prepared by yourself and addressed to the victim in which you accept responsibility for your actions and express remorse. I note that you also expressed remorse in the oral evidence that you gave before me.
A Report date 28 January 2021 from Ms Leesa Morris, a forensic psychologist, was tendered on your behalf. Ms Morris notes that you have learned to compensate with regard to your ADHD and Specific Learning Disorder and that you do not meet the criteria for any additional psychological or personality disorder.
It was noted that you have difficulty with processing new and/or complex information in a calm environment. Ms Morris anticipated that this difficulty was amplified during the stress response invoked by Ms Denis alleging that she had been assaulted. Ms Morris expressed the view that this, combined with your ADHD goes much of the way to explaining your offending.
As Ms Morris noted, you have expressed remorse for your conduct and also expressed some victim empathy. She assessed you as being at a low to moderate risk of recidivism. She believed that this risk may be reduced if you engage with psychological and/or cultural interventions regarding stress and anger management. There is nothing in Ms Morris' report which operates to significantly reduce your moral culpability for your offending.
You entered pleas of guilty to the present charges in the ACT Magistrates Court. I accept that they were early pleas of guilty although not entered at the earliest opportunity. Your pleas of guilty clearly had significant utilitarian value. I will reduce by approximately 20 per cent the otherwise appropriate sentences because of your pleas of guilty.
I accept that you are remorseful for your actions and that it is unlikely you will
re-offend in a similar way in the future. In sentencing you, however, I must still bear in mind the need to impose a sentence which marks the community's disapproval of the discharging of a firearm in a suburban setting which resulted in serious injury to an innocent person.
I must impose a sentence designed to bring home to those who may be minded to take the law into their own hands, and to unlawfully possess and use firearms, that their actions will have real consequences.
I have considered all other sentencing options including an Intensive Correction Order and I am satisfied that nothing less than the imposition of an immediate term of imprisonment will be appropriate to meet the requirements of sentencing.
The maximum penalty with regard to the offence of recklessly inflicting grievous bodily harm is 13 years' imprisonment which demonstrates the community's concern regarding this type of offending.
I note that the facts of the offence of discharging a firearm at a building are the same facts relied upon by the Crown for the offence of recklessly inflicting grievous bodily harm.
In my opinion, it is appropriate to make the sentence for those two offences entirely concurrent. Considerations of totality also require a degree of concurrence of sentence for the other offences. I take into account that you have spent 16 days in pre-sentence custody.
Sentence
On the offence of recklessly inflicting grievous bodily harm (CC 2020/8810), I record a conviction and you are sentenced to four years' imprisonment reduced from five years because of your plea of guilty. That sentence will commence on 16 June 2021 and expire on 15 June 2025.
On the offence of discharging a firearm at a building (CC 2020/6658), I record a conviction and you are sentenced to one year and seven months' imprisonment which I have reduced from two years because of your plea of guilty. That sentence will commence on 16 June 2021 and expire on 15 January 2023.
On the offence of unauthorised use of a prohibited firearm (CC 2020/7914), I record a conviction and you are sentenced to 12 months' imprisonment reduced from 15 months because of your plea of guilty. That sentence will commence on 16 September 2024 and expire on 15 September 2025.
On the offence of attempting to conceal evidence (CC 2020/7917), I record a conviction and you are sentenced to 10 months' imprisonment reduced from 13 months because of your plea of guilty. That sentence will commence on 16 January 2025 and expire on 15 November 2025.
For the offence of cultivating cannabis plants, I record a conviction and you are sentenced to four months' imprisonment reduced from five months because of your plea of guilty. That sentence will commence on 16 June 2021 and expire on 15 October 2021.
The aggregate sentence which I have imposed is therefore one of four years and five months' imprisonment, commencing 16 June 2021 and expiring 15 November 2025.
I set a non-parole period of two years and five months' imprisonment commencing 16 June 2021 and expiring 15 November 2023.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Chief Justice Burns. Associate: Date: |
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