R v Mussen

[2016] NSWDC 196

District Court

New South Wales

Medium Neutral Citation:	R v Mussen [2016] NSWDC 196
Hearing dates:	8 August 2016
Date of orders:	08 August 2016
Decision date:	08 August 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Impose an aggregate sentence of imprisonment consisting of a non-parole period of 3 years and a head sentence of 6 years
Catchwords:	CRIMINAL LAW – Sentence - Reckless wounding – Possess shortened firearm – Fire firearm in a manner likely to endanger life - Self induced intoxication
Category:	Sentence
Parties:	The Crown Brandon Mark Mussen aka Rogan
Representation:	Counsel: Mr P Krisenthal - Offender   Solicitors: Director of Public Prosecutions Legal Aid Commission - Offender
File Number(s):	2015/203752

Judgment

1. HIS HONOUR: Not that long ago, Parliament made clear that self-induced intoxication is not a mitigating factor when an intoxicated person commits a crime. That had been the law for some time. In the present case, not only is Mr Mussen’s voluntary decision to intoxicate himself by means of an illegal drug not a mitigating factor, it is, indeed, an aggravating factor, as I will soon explain.

2. The offender has pleaded guilty to three offences. They are reckless wounding, possessing a shortened firearm and firing a firearm in a manner likely to endanger the safety of others. When I sentence him for the second of those matters, the shortened firearm matter, he asks that I take into account two matters on the Form 1, possessing ammunition and not keeping a firearm safely.

3. The maximum penalties are set out on the Crown sentence summary as follows: For reckless wounding, the maximum penalty is seven years imprisonment with a standard non-parole period of three years. For possessing the shortened firearm, the maximum penalty is 14 years imprisonment, a sentence which indicates how significantly Parliament says judges should regard such offences. And for firing a firearm in a manner likely to endanger the safety of others, the maximum penalty is 10 years imprisonment. I have taken into account the maximum penalties and, where appropriate, the standard non-parole period, in deciding the appropriate sentence to impose upon the offender. My reasons for not imposing the standard non-parole period for the reckless wounding matter appear in these remarks on sentence.

4. In the very early hours of 12 July, a man by the name of Brook Sloane was asleep at his home. There was a loud knocking at his door. When he woke up and went to the door he saw the offender and another man.

5. Mr Sloane let them in so they would not disturb the neighbours. Mr Sloane made the other two a cup of coffee and there was a conversation about jewellery and gold. Then the offender asked Mr Sloane if he wanted to buy a gun. Sensibly, Mr Sloane declined the offer. It was at this stage that the offender produced the firearm which he had brought with him. It was a shortened ·.22 calibre rifle.

6. The offender pointed the gun at the floor and said, “If I shot this into the ground will it wake up the neighbour?” Mr Sloane replied that the neighbour had died a previous week. He then heard a click and the offender say, “Lucky it wasn’t loaded.” There was a loud bang. What had happened is that the offender had shot Mr Sloane in the knee. The offender and the man that he had come to the unit with then ran away.

7. Mr Sloane called triple-0. The offender and the other man went to a park where the offender went and concealed the firearm he had just shot Mr Sloane with. Police went to Mr Sloane’s home and took him to hospital.

8. Eventually police caught up with the offender. They could not interview him because he was under the influence of a drug but they did go to his home and spoke with his mother, who gave permission to search the home. In the offender’s bedroom police located the following: A rifle cleaning kit on the bed; a bag containing a sawn off shotgun and two shotgun cartridges, also on the bed. There was a fired shotgun cartridge casing behind the television. There was a black baton in the bottom drawer of the desk, a pair of silver handcuffs there too, as well as seven assorted knives and six plastic cable ties.

9. Police then went back to the offender and spoke with him. He said that he knew nothing about the shooting and that he was “frying” when that happened. That meant that he was getting high.

10. In response to receiving some more information, police went to where the offender had hidden the ·22, they recovered it and a number of ·22 rounds. When they rendered the firearm safe a ·22 calibre cartridge ejected from it. Thus it had been loaded when it was hidden.

11. Police conducted an interview with the offender and he made no admissions but told police he had been smoking ice for some days prior. The ·22 was in working order when it was examined by a ballistics expert. Of course it was in working order when it was used to shoot Mr Sloane as well. The shortened shotgun was also in working order.

12. To say that these offences are serious is an understatement. The offender, whilst intoxicated, was playing around with a loaded firearm. He managed to shoot an innocent person in the knee, causing significant consequences for him. When police went to his home they found yet another shortened firearm. And on top of that the offender possessed ammunition suitable for those firearms.

13. As the Crown accurately pointed out, there is but one reason that a firearm is shortened, that is so that it can be used in the commission of a crime. The fact that the offender also possessed handcuffs, a number of knives, cable ties and a baton, say a great deal about the character of the offender at the time he committed the offences for which I must sentence him.

14. The offender was barely 18 at the time he shot Mr Sloane, 18 years and two months in fact. There is, of course, no bright line by which a person reaches adult maturity as soon as they reach their 18th birthday. I take into account, in the offender’s favour, his youth at the time he committed these offences.

15. The offender did not have a good role model in his father. His parents split up when he was reasonably young, with, as I understand it, custody at one stage being given to his father. During the time that the offender lived with his father, he was exposed to behaviour which poorly modelled to him the way he should act. His father owned illegal firearms, he did not keep them locked up or in a gun safe. His father’s new partner was physically abusive towards him and was herself the victim of domestic violence at the hands of his father. The offender was the subject of abuse, including abuse which led to signs of physical injury.

16. When this became known, the offender’s mother regained custody of him, which led to his father simply, as I understand it, abandoning his relationship with the offender.

17. In contrast to the role model which his father provided, his mother is a good role model. He has a half-brother too, who provided a reference for the court, explaining the circumstances of the offender’s early upbringing and suggesting that there is hope for the future once the offender is released from what is conceded to be a significant period of custody.

18. I should mention another poor role model. At one stage the offender had a partner who introduced him to the drugs that he was using at the time of this offending.

19. Mr Krisenthal relies in particular on one aspect of the psychological report tendered on his behalf. The psychologist said,

“To surmise his substance use, Mr Mussen indicated that cannabis was normalised by his father and peers in his area as a means of regulating his daily emotional functioning. The addition of methamphetamine, also normalised an older intimate partner and his peers, reportedly allowed Mr Mussen to feel ‘untouchable’ as if he was ‘flying’.”

20. Quite clearly, these offences have occurred in the context of the offender mixing with the wrong crowd. It was the sort of crowd that would allow him to possess dangerous weapons, weapons that, as I have said, are really only to be used in the course of committing further offences.

21. I should now speak about the consequences for the offence on Mr Sloane. Mr Krisenthal submitted that these injuries were not life threatening but they were certainly life changing. The consequences for Mr Sloane have been set out in the victim impact statement. He says that walking over 500 metres is a challenge. He can no longer run and catch a bus or a train, with stairs being nearly impossible. He refers to psychological effects as well. He has suffered financially because of what the offender did to him.

22. He does say that he forgives the offender. That forgiveness by Mr Sloane, while highly commendable from a human point of view, must be ignored by a sentencing judge. Just as when victims of crime seek harsh penalties such expressions of opinion must be ignored, so must expressions of forgiveness be ignored.

23. Mr Krisenthal accurately submitted that there is significant overlap between two of the offences. The offence of reckless wounding was committed when the offender fired the firearm and so there is a significant overlap between the offences of reckless wounding and firing a firearm in a manner likely to endanger the safety of others.

24. There are prospects for the offender’s rehabilitation, although the very serious nature of his behaviour does call into question whether the offender has good prospects of rehabilitation. There is a job available for him in his brother’s pest control company. The fact that the offender pleaded guilty at the earliest opportunity is also a factor to be taken into account in assessing the likelihood that the offender will re-offend in the future. He certainly does have good role models available to him, which bodes well for the future.

25. Having mentioned the pleas of guilty, I should emphasise that he is to be rewarded with a discount of 25 per cent to reflect the utilitarian value of those pleas of guilty.

26. I need, however, before passing sentence, to emphasise just how serious this behaviour was. He went with a loaded 22 to Mr Sloane’s home and offered to sell it to him. Whilst highly intoxicated, he shot Mr Sloane, not intending to, but given the combination of an intoxicated person and a loaded firearm, that a person ended up getting shot is not terribly surprising. And then, on top of that, to possess a shortened shotgun, simply lying in a bag on his bed, with two shotgun cartridges nearby, demonstrates a level of criminality which is highly significant, even in a person only 18 years and two months old at the time.

27. It is a fundamental rule in sentencing that a sentence needs to reflect the objective gravity of an offender’s conduct. That explains why a significant sentence of imprisonment is required.

28. There are special circumstances in this case. They relate to the offender’s immaturity, his behaviour whilst in custody is poor as well and so if he is to stay out of gaol, if he is to take the opportunities which are available to him upon release from custody, he will benefit from an extended of supervision by the Probation and Parole Service.

29. I will impose an aggregate sentence of imprisonment. Had I not imposed an aggregate sentence, I would have imposed the following sentences:

30. For the reckless wounding offence, three and a half years imprisonment with a two year non-parole period. For possess shortened firearm, three years imprisonment. For the fire firearm in a manner likely to endanger safety, two and a half years imprisonment.

31. The aggregate sentence I impose consists of a non-parole period of three years and a head sentence of six years to date from 12 July 2015.

32. The non-parole period will expire on 11 July 2018, on which day the offender is eligible to be released to parole.

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Decision last updated: 01 September 2016