R v Kirk

[2017] NSWDC 195

District Court

New South Wales

Medium Neutral Citation:	R v Kirk [2017] NSWDC 195
Hearing dates:	9 June 2017
Date of orders:	09 June 2017
Decision date:	09 June 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 4½ years with a head sentence of 7½ years. For the s166 offence of drive while disqualified the offender is sentenced to 3 months fixed term of imprisonment. Other backup matters on s 166 certificate are withdrawn and dismissed.
Catchwords:	CRIMINAL LAW – Sentence – S166 certificate drive while disqualified – Ongoing supply - Firing a firearm in a manner likely to injure persons or property - Using an unauthorised prohibited firearm - Reckless wounding – Drug addiction – Subject to a s9 bond to be of good behaviour at time of offending
Category:	Sentence
Parties:	The Crown Phillip John Kirk
Representation:	Counsel: Mr A Lucas   Solicitors: Director of Public Prosecutions Mark Rumore – The offender
File Number(s):	2016/15841; 2016/113473

SENTENCE

1. HIS HONOUR: The offender in this case, Phillip John Kirk, is a man whose life has been, for many years, focused on drugs. This has directly led to the offender committing a serious offence of ongoing supply. He is also to be sentenced for an act of considerable violence resulting in three offences which overlap.

2. The offender pleaded guilty at the earliest opportunity to the four offences for which he was committed for sentence and so the sentences I impose upon him will be 25% less than they would otherwise have been. He also asks me to sentence him for a driving matter on a s 166 certificate, an offence of drive whilst disqualified.

3. Mr Kirk’s offending can be divided up into two distinct areas. In late 2015 he was detected as being an ongoing supplier of methylamphetamine and heroin. There were 15 separate transactions in which the offender either supplied or agreed to supply relatively small quantities of drugs. Ultimately there was about 25 grams of drugs supplied and 10 grams of drugs agreed to be supplied. Of course, the offence of ongoing supply was introduced because of the seriousness of the harm which street level dealers like Mr Kirk can cause. The offence carries the same maximum penalty as supplying a commercial quantity which is an appropriate way of looking at Mr Kirk’s conduct.

4. He was responsible for a significant distribution of drugs. The seriousness with which Parliament considers such offences should be treated is to be reflected in the maximum sentence of imprisonment applicable for that offence, 25 years imprisonment. The offender was, as Mr Lucas submitted, doing this to support his own habit. He was not one of those who we occasionally see in the District Court who was funding a luxurious lifestyle.

5. The other act of criminality for which the offender is to be sentenced occurred in November 2015 and ultimately the offender has pleaded guilty to three offences in relation to this. Firing a firearm in a manner likely to injure persons or property which carries a maximum penalty of ten years. Using an unauthorised prohibited firearm, in this case a sawn off double barrel shotgun which carries a maximum penalty of imprisonment for 14 years with a standard non-parole period of four years. Reckless wounding which carries a maximum penalty of imprisonment of seven years with a standard non-parole period of four years.

6. The difficulties in assessing how to sentence someone for the latter two counts where they both carry the same standard non-parole period but one maximum penalty is twice the other are obvious.

7. I have taken into account in all cases the maximum penalties and where appropriate the standard non-parole periods in formulating the sentences I will impose upon Mr Kirk. My reasons for not imposing the standard non-parole period appear in these remarks on sentence.

8. The circumstances leading up Mr Kirk’s use of the firearm were as follows: He was in a relationship with a woman named Paula Murray. She had previously been in a relationship with a man who ultimately became the victim of Mr Kirk’s use of the firearm. His name is Mark Coleman. The relationship between Mr Coleman and Ms Murray broke down. It did not break down well, at least as far as Mr Coleman was concerned. He acted in a disgraceful way. He posted numerous naked photos of Ms Murray to a website and then told her what he had done.

9. He sent those photos, not only to Ms Murray’s employer but also to Ms Murray’s 17 year old son. He was convicted of an offence in relation to this conduct, pleaded guilty and was sentenced to a good behaviour bond for 12 months.

10. Ms Murray also was subject to harassment. She and Mr Kirk believed that Mr Coleman was responsible for this. In particular Ms Murray found that there were nails in her car tyres, Ms Murray considered Mr Coleman was responsible for this because he had told her that he had done something similar to one of his ex-girlfriend’s cars. It was in these circumstances that the offender decided to seek revenge against Mr Coleman.

11. On 17 November 2015 Mr Coleman was in his car parked out the front of his house. He was sitting in his car for some time chatting on the phone. It is accepted by the Crown that when Mr Kirk did what he did, as I will shortly describe, he did not know that Mr Coleman was in the car.

12. Mr Kirk armed himself with a sawn off shotgun. He fired it at Mr Coleman’s car twice. He clearly intended, at least, to cause damage to the car but, no doubt, also intended this to be a threat to Mr Coleman so that he would desist from what Mr Kirk and Ms Murray believed that he was doing.

13. The first shot did not injure Mr Coleman. The second shot did. Mr Coleman was taken to hospital, observed for 24 hours and discharged. It is apparent that some of the pellets could not be removed and they remain in Mr Coleman’s body. Not surprisingly this has had consequences for Mr Coleman, both physical and perhaps more importantly psychological.

14. The consequences for him were set out in a victim impact statement which was tendered by the Crown. I have no hesitation at all in accepting that the consequences that Mr Coleman described are exactly the sort of thing that would happen if one were shot in the manner Mr Coleman was shot.

15. Although, as I mentioned, Mr Kirk did not know that Mr Coleman was sitting in the car when he discharged the sawn off shotgun twice, by his plea of guilty he indicates that he was reckless as to the possibility that a person would be harmed. In particular, although the car in which Mr Coleman was sitting had tinted windows at the side, of course the windscreen was not tinted and had Mr Kirk bothered to check he would have easily seen Mr Coleman sitting in the car.

16. I mentioned Mr Kirk’s problems with drugs. They began at a relatively early age. There have been periods where Mr Kirk has been drug free but as is obvious he has always relapsed. This is not at all uncommon. Drug addiction is a terribly hard thing to overcome.

17. Mr Kirk, despite his problems with drugs, has had, at least at times, a good employment history. Indeed for seven or so years he held down a job but was unfortunately dismissed from that due to a drug related issue. Although he suggests that he is now clean and sees things differently, it is to be noted that there are some infringements on his custodial history relating to drug use whilst in gaol.

18. Consistent with Mr Kirk’s lengthy problems with drugs, there are a significant number of matters on his criminal history including an armed robbery when he was 18 in 2002, a break enter and steal in 2003 and an aggravated burglary in 2005. Since that time the matters on his criminal history are less serious, at least until I sentence him for these matters.

19. Mr Kirk is the younger of two children to his parents. His mother suffered from paranoid schizophrenia and died about nine years ago. She was hospitalised when the offender was about 12. His father, who was employed was often away and his mother was unable to effectively parent the offender and his sister, so much so that his sister adopted the role of mother until their father left his job to become his wife’s fulltime carer.

20. When he was 16 he moved away from the family home to live with relatives on the Central Coast. It was at this stage he began mixing with antisocial peers which led to much of his offending behaviour and drug use. Clearly Mr Kirk needs assistance in rehabilitation. Mr Lucas asked that I find that there are reasonable prospects of rehabilitation. I will make that finding. I note that Mr Lucas did not ask me to find that there were good prospects of rehabilitation, a finding I would have been unable to make.

21. In the context of public discussion and controversy about the granting of parole it is important to note why offenders are granted parole. This is not done as any favour to the offenders themselves. The aim of granting parole to an offender is to assist with that offender’s rehabilitation into society and the aim of that is in turn to reduce the risk of further offending. So I will make a finding of special circumstances in Mr Kirk’s favour because he does need an extended period of supervision on parole, perhaps to allow him or indeed to require him to attend at residential rehabilitation or at the very least, to enable very strict supervision of his behaviour upon his release from custody.

22. As I have just said, this is not done as any favour to Mr Kirk. That is done to protect the community as much as the community can be protected from further offending by Mr Kirk. It has to be recognised that Mr Kirk is going to be released from custody one day and it is much better that he is released to parole where his conduct can be monitored and he can be appropriately supervised by the Probation and Parole Service than to release him to parole without such monitoring and supervision.

23. This fundamental aspect seems to have been overlooked as a result of controversy arising from people on parole committing offences, serious offences such as murder in Melbourne in recent days. I repeat, the granting of parole is something which is done to aid in the community and its members being protected from further offences. It is not done to reduce the severity of a sentence of imprisonment upon a prisoner although that will often be the inevitable consequence.

24. I take into account that there was a significant degree of provocation arising in the offences involving Mr Coleman. Provocation can be a matter of mitigation but, of course, vigilantism is not. The proper response to conduct such as I have described is not to fire a sawn off shotgun at someone’s car especially without checking that that car is empty.

25. I note that there is a substantial degree of overlap in the criminality covered by the three offences involving Mr Coleman. They all relate to each other but to different aspects of criminality. The Crown suggested that in a particular offence something was an aggravating factor but upon analysis that aggravating factor is reflected in the criminality covered by a separate charge. To both sentence the offender for those three offences while at the same time taking into account aggravating factors in one offence, which are covered by other offences, would be to double count. I will not do that.

26. The circumstance that the offender was on a s 9 bond is an aggravating factor and, of course, to some extent Mr Kirk’s use of the shotgun was planned. He had to obtain it in the first place, load it and then use it. Ultimately I have to impose a sentence on the offender which reflects the objective gravity of his conduct. In each case his criminality was significant. It is a serious matter to be a street level dealer of drugs supplying as often as the offender did and it is a serious matter to use a sawn off shotgun to fire at a car without even checking whether that car was occupied.

27. In order to reflect the objective gravity of the offender’s misconduct he must spend a significant time in gaol. For the s 166 matter I will impose a fixed term of imprisonment of three months to date from 16 January 2016. I will impose an aggregate sentence on the remaining matters. Were I not to have done so, I would have imposed the following sentences. The ongoing supply matter, four years imprisonment. For the firearm matter, three years imprisonment. For the use unauthorised firearm matter, four years imprisonment with a non-parole period of two years and for the reckless wounding matter three years imprisonment with a non-parole period of 18 months.

28. Instead I impose an aggregate sentence consisting of a non-parole period four and a half years with a head sentence of seven and a half years to date from 16 January 2016 which means that the offender is eligible to be released to parole on 15 July 2020.

29. I will note that the other matters on the s 166 certificate, the backup matters, are to be withdrawn and they are therefore dismissed.

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Decision last updated: 02 August 2017