R v Sharp
[2019] ACTSC 175
•5 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sharp |
Citation: | [2019] ACTSC 175 |
Hearing Date: | 5 July 2019 |
DecisionDate: | 5 July 2019 |
Before: | Murrell CJ |
Decision: | See [72]–[74]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Intentionally and unlawfully discharging a firearm so as to cause another person reasonable apprehension for his or her safety – Cause damage to property – Unauthorised possession of firearm – Outlaw Motorcycle Gang – Victim impact – Extensive criminal history – Young age of offender – Subjective considerations include psychological factors. |
Legislation Cited: | Crimes Act 1900 (ACT) s 27(3) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Firearms Act 1996 (ACT) s 43(1)(a)(iii) |
Cases Cited: | R v Hodge [2019] ACTSC 15 R v Pattman [2017] ACTSC 331 R v Wrigley [2015] ACTSC 114 |
Parties: | The Queen (Crown) Cameron Sharp (Offender) |
Representation: | Counsel M Fernandez (Crown) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
File Number: | SCC 1 of 2019 |
Murrell CJ
Introduction
On 10 March 2017, the offender committed the following offences.
(a)Intentionally and unlawfully discharging a loaded firearm so as to cause another person reasonable apprehension for his or her safety, contrary to s 27(3) of the Crimes Act 1900 (ACT). The maximum penalty is 10 years’ imprisonment.
(b)Causing damage to property, namely a Suzuki Swift, a Mazda 3, and 222 Ellerston Avenue, Isabelle Plains by fire and intending or being reckless about causing that damage, contrary to s 404(1) of the Criminal Code 2002 (ACT). The maximum penalty is 15 years’ imprisonment and/or a fine.
(c)Possessing a firearm when not authorised by a licence, permit or otherwise by the Firearms Act 1996 (ACT) to do so, contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT). The maximum penalty is five years’ imprisonment.
Pleas
After the matters were committed to the Supreme Court for trial but before a trial date was set, the offender indicated at a criminal case conference that he would plead guilty. The pleas were entered about a week later. Having regard, among other things, to the utilitarian value of the pleas, the sentences that I would otherwise have imposed will be discounted by at least 15 per cent.
The offender has been in custody since 8 May 2018 in relation to other matters. He is serving sentences until 8 January 2023, with a non-parole date of 8 March 2021.
Facts
In early 2017, the offender was a nominee or prospect for the ACT chapter of the Comanchero Outlaw Motorcycle Gang (OMCG). He was in dispute with Mr Turnbull, the sergeant-at-arms of the ACT chapter of the Nomads OMCG.
The AFP obtained warrants for the offender’s mobile telephone and the mobile telephone of a close associate, Mr N. The content of the offender’s telephone conversations reveals that the offender was aware that his calls were being intercepted.
On 20 February 2017, the offender’s firearms licence was suspended. On 10 May 2017, it was cancelled.
On 7 March 2017, Mr Turnbull posted a status on his Facebook profile that was directed at the offender, stating:
the next time someone talks shit about me to you I wouldn’t even bother telling me… The next time a 18 year old no name midget commo lover from the north side with an ugly baby wants to open his mouth tell him to come say it to me instead of saying it to you
On the afternoon of 7 March 2017, Mr T drew the post to the attention of the offender, who expressed displeasure. On the afternoon of 8 March 2017, the offender spoke by telephone with Mr O, again expressing displeasure. In fact, the offender was furious about the post.
The offender communicated with Mr N about a “plan to shoot up Turnbull’s home”.
On the evening of 8 March 2017, Mr N asked the offender whether they were “doing this tonight” and the offender said “I’ll see you soon”.
On 9 March 2017, the offender spoke to his brother in relation to planning a shooting and arson at Mr Turnbull’s home, saying “it has to be done now”. That night, the offender asked his brother whether he could borrow money. His brother responded that if “they” gave the offender the $20 that was available, they might not have enough money for a jerry can. The offender arranged to meet his brother at a Shell service station in Belconnen.
At about 7:25 PM on 10 March 2017, the offender arranged to communicate with his brother via Wickr. Wickr is an instant messenger phone application that allows the exchange of encrypted messages that delete at a set time after the receiver opens the message.
A few minutes later, the offender was captured on CCTV at a venue in Braddon in the company of six members of the Comancheros OMCG.
The offender attended his girlfriend’s home and told her that he was “going to shoot up Turnbull’s house and torch it”. His girlfriend expressed concern about Turnbull’s girlfriend, Ms Q, who was a friend of hers. The offender asked his girlfriend to photograph them together and upload the photograph to Snapchat at 10:30 PM with the message “when your boyfriend tans your back at 10:30 PM” for the purpose of demonstrating that he was with her at that time. Later, the offender’s girlfriend fulfilled this request. The offender changed his shirt and dressed with his clothing inside out, concealing distinctive features that may have identified the clothing. He left his telephone at his girlfriend’s home to prevent police from tracking it.
Between about 9:45 and 10 PM, the offender left his girlfriend’s home in the company of unknown persons.
At about 11 PM, he arrived at Mr Turnbull’s residence in a vehicle that had been stolen on 23 February 2017. Later, the offender told police that he had “borrowed” the vehicle from “a guy in Macgregor in exchange for some crack”.
At about 11 PM, Mr Turnbull and Ms Q were in bed in a room at the rear of Mr Turnbull’s residence and Mr Turnbull’s father was asleep in the room at the front of the premises.
A Suzuki vehicle and a Mazda vehicle were parked at the front of the premises.
The offender spread fuel liberally near the vehicles and ignited a fire. The fire spread from the cars to the front porch of the premises, where it damaged the front door and nearby fixtures.
The offender fired two shotgun rounds from the driveway towards the front bay window of the premises, where it damaged the front door and nearby fixtures. The first round hit the window, causing an area of the window to partially shatter. The second round hit a brick wall near the front door and the bay window. At the time, Mr Turnbull’s father had been asleep in the room with the bay window.
Mr Turnbull and Ms Q ran to the front door, where they saw that their vehicles were alight, as were items around the front door, including the front door mat. Mr Turnbull tried to extinguish the fire.
ACT Fire and Rescue attended the residence and extinguished the flames.
When police arrived, they located a fire-damaged 20-litre jerry can on the driveway, a fire-damaged jerry can behind the rear driver side of the Suzuki vehicle, and a single 12-gauge shotgun wad next to the front door of the premises.
The offender returned to his girlfriend’s home and told her that he had torched Ms Q’s car (although he had not intended to do so) and he had shot at the Turnbull residence. He expressed anger that “he couldn’t finish the job” and said that he wished that Mr Turnbull was dead. He expressed an intention to return and shoot him. The offender stated that he had been in the company of others. He said that he expected that, in recognition of his conduct, the Comancheros would reward him with a patch for his vest.
At 2:11 AM on 11 March 2017, the offender sent an “alibi” message to Mr T saying “I’ve been at home with [my girlfriend] all night”.
A few days later, the offender told Mr N that he had “hit” and “got” Mr Turnbull and that he had “shot up” Mr Turnbull’s house and “blown up” a car.
On 17 March 2017, the offender made admissions to Mr G, a close associate. He said that he had used a shotgun to fire at the residence as shotguns could not be ballistically matched. On 17 March, Mr G saw a sports bag on the back seat of the vehicle belonging to the offender’s brother. Inside the sports bag he saw a sawn-off shotgun and about 50 shells. Previously, he had seen the shot gun in the offender’s vehicle.
After the incident, the offender arranged to store his shotgun at the home of a Mr H, who was asked to hold the bag for the offender’s brother and advised that he should not look inside it. A fortnight later, the offender asked Mr H to return the bag.
On 21 May 2017, the offender’s father attended the Balmain Police Station in Sydney and relinquished a 12-gauge Miroku model sawn off over and under double-barrelled shotgun and a 12-gauge Baikal model side-by-side double-barrelled long-arm shotgun, 66 shotgun cartridges, and two fired shotgun cartridge cases. The shotguns and cartridges were contained in a sports bag.
One of the shotguns was the shotgun that had been used by the offender during the incident of 10 March 2017. The evidence does not permit me to determine which of the two shotguns was used, nor was the Court provided with any expert evidence to enable it to assess the relative dangerousness of shotguns of the types in question.
As stated above, on 8 May 2018, the offender was arrested on an unrelated matter and he has been in custody since that date.
Victim impact
Ms Q read a victim impact statement in which she described the dramatic emotional impact of hearing three loud bangs and then seeing her car engulfed in flames. Although the incident occurred more than two years ago, she continues to experience significant symptoms of post-traumatic stress, including anxiety attacks, emotional lability, hypervigilance, nightmares, and a pervading sense of sadness and isolation.
Mr Turnbull’s father provided a victim impact statement that referred to the grief and trauma directly associated with the incident and the embarrassment and humiliation that he and his broader family have suffered as a result of it. There has also been significant financial loss caused by associated decisions to relocate.
I accept that the victims have suffered significant emotional trauma as a result of this very frightening incident, which saw them innocently caught up in gang-related retribution.
Objective seriousness
Arson
The considerations relevant to assessing the objective seriousness of an arson offence have been stated in R v Wrigley [2015] ACTSC 114 at [34] and numerous other cases, including R v Hodge [2019] ACTSC 15.
The arson offence in this case was attended by a high level of objective seriousness, having regard to the following features.
(a)The motive for the arson was twofold: retribution for a slight against the offender on social media and the desire to be promoted within an OMCG to become a “patched member”.
(b)The offence was directed at two cars (which were owned separately, so there were two direct victims) and each of the vehicles was substantially damaged. Predictably, the fire spread to the nearby residence.
(c)Three victims were emotionally impacted by the offence and the occupants of neighbouring residences were no doubt also frightened.
(d)An accelerant was used.
(e)The offence occurred at night and in a residential area.
(f)The offender knew that a person or persons were present in the residence near where the fire was ignited; the offence was intended to frighten Mr Turnbull and the presence of two cars signalled that the residence was occupied.
(g)The offence was attended by considerable planning: a jerry can was acquired and petrol was purchased; the offender set up an alibi using his girlfriend; he dressed in a way that was designed to conceal his identity; and he used the Wickr application to communicate with others in relation to the planned offence.
(h)There was a community cost in the sense that ACT Fire and Rescue was required to attend for the purpose of quelling the fire.
Discharge firearm
This offence was of high objective seriousness.
(a)It was inspired by the motives that guided the arson offence.
(b)It was attended by considerable planning.
(c)It occurred at night in a residential area.
(d)It involved the reckless discharge of a firearm towards a residence in circumstances where the projectile impacted on a window very close to where a person was sleeping. The incident would have been terrifying to Mr Turnbull’s father.
Unauthorised possession of firearm
In assessing the objective seriousness of this offence, I disregard the matters taken into account in relation to the offence of discharging a firearm. When those matters are disregarded, the offence was of a lower objective seriousness, particularly because it involved only one firearm and possession on one occasion.
Criminal history
On 4 August 2017, the offender was sentenced for four offences committed just before or just after the subject offences. For an offence of common assault committed on 1 January 2017, he received a three-month sentence of imprisonment suspended on a 12-month good behaviour order. For an offence of contravening protection order committed on 7 April 2017, he received a six-month sentence, suspended after 93 days on a 12-month good behaviour order. For two other offences of common assault, both committed on 3 February 2017, he was sentenced to 92 days’ and two months’ imprisonment respectively. The combined effect of these sentences was that the offender was in custody from 5 May to 4 August 2017, and from that date was serving suspended sentences on 12 months’ good behaviour orders.
After he had spent three months in custody (May to August 2017), the offender was released into the community, where he remained until he was arrested on 8 May 2018 for offences committed in 2017.
On 15 February 2019, the Court of Appeal resentenced the offender for offences of forcible confinement and making demand with menaces committed on 8 April 2017 to a total sentence of three years’ imprisonment from 9 May 2018 to 8 May 2021 and set a new non-parole period that expired on 8 November 2019: R v Sharp [2019] ACTCA 7.
On 5 April 2019, the offender was sentenced for offences committed on 17 March 2017, (aggravated burglary and assault occasioning actual bodily harm) to a sentence of three years and four months’ imprisonment from 9 November 2019 to 8 March 2023. The non-parole period was reset to expire on 8 January 2021.
On 17 April 2019, the offender was sentenced for an offence of threatening a witness on 8 May 2018, to four months’ imprisonment from 9 September 2022 to 8 January 2023. The non-parole period was reset to expire on 8 March 2021.
As this history shows, it was during one short period in March/April 2017 that the offender engaged in high level offending, including that for which he is before the Court. As a result, the offender is now serving a total of four years and eight months’ imprisonment (from 9 May 2018 to 8 January 2023) with a non-parole period of two years and 10 months (expiring 8 March 2021), which represents about 61 per cent of the total sentence.
Other subjective features
The offender is 22 years old. At the time of the offences, he was 20 years old. He is the second youngest of four siblings.
The offender’s parents informed the Court that, from birth, the offender had difficulties. When he was about four years old, he suffered a fractured skull. When he was between five and seven years old, he was diagnosed with ADHD, Aspergers Syndrome and autism, and was prescribed medication. Nevertheless, he continued to display behavioural problems.
The offender himself described a positive childhood (at least within the home environment), and a supportive relationship with his family, although his father had some difficulties with gambling and mental health.
Prior to being incarcerated, the offender lived with his parents in NSW. The offender intends to return to his parents’ home upon release.
The offender has been in his current relationship for about 18 months. He described the relationship as stable and positive, stating that his partner had a calming influence on him. His partner regularly visits him at the AMC.
The offender is subject to a Family Violence Order in relation to an ex-partner and her child for 24 months from 27 March 2019, and a Domestic Violence Order in relation to another ex-partner and the offender’s child for 24 months from 26 April 2019. The offender has had no contact with his child for about two years.
The offender described his schooling experiences as traumatic. A number of school suspensions were imposed and the offender was “always in trouble”. He did not develop strong friendships with schoolmates. He completed Year 10 partly via home schooling, supervised by his parents.
After leaving school, the offender undertook a plumbing apprenticeship. He did not complete the apprenticeship but intends to resume it upon his release. At one stage he was employed as a labourer for approximately 12 months. Initially, the offender demonstrated a good work ethic and was a highly regarded employee. Later, the offender’s substance abuse impacted on his employability.
Between 18 and 21 years of age, the offender used cocaine, and by 20 years of age was using it on a daily basis. In addition, he abused prescribed medication. While in the AMC, the offender has been receiving pharmacotherapy treatment (methadone) for a significant substance abuse problem.
The offender’s grandmother passed away in November 2016, and her death had a significant impact on the offender, as the two had had a very close relationship. At that time, his substance abuse increased. The offender’s parents noticed a deterioration in the offender’s behaviour and attitude. He ceased taking prescribed medication. At one stage, his parents sought police assistance, but it was not forthcoming.
Prior to May 2017, the offender engaged in high risk binge drinking.
ACT Health have diagnosed the offender with ADHD, adjustment disorder with depressive features, and substance misuse disorder. In addition, Ms Morris, who furnished a psychological report, diagnosed the offender as suffering from Autism Spectrum Disorder (Level 1).
Police records indicate that the offender is no longer associated with an OMCG.
The offender has accepted responsibility for the offences, acknowledged that his actions were wrong, expressed regret and demonstrated insight into the impact of the offences on the victims.
The offender is availing himself of the opportunities offered within the AMC by working as a cell cleaner and undertaking courses. His behaviour in custody has been generally satisfactory.
The offender appreciates that he has a long-standing emotional issue of low self-esteem and feelings of lack of acceptance. I infer that the offences were partly motivated by the offender’s desire to gain acceptance.
The authors of the recent pre-sentence report stated:
Whilst his motivation to make a positive change is evident, Mr Sharp will need to genuinely commit to interventions to address his illicit substance use. It will also be crucial for Mr Sharp to take necessary steps towards resolving any behavioural problems that may continue to undermine his capacity to lead a lifestyle free from crime in the community.
Ms Morris stated that, in relation to his neurological conditions and associated behaviours, the offender would benefit from individual intervention by a suitably experienced professional.
The offender was assessed by the authors of the pre-sentence report as at medium risk of general reoffending, primarily due to his substance abuse and mental health problems, history of associating with antisocial peers, and financial problems (he has significant debts). Ms Morris agreed that the offender was at moderate risk of reoffending but added that, with appropriate psychological intervention and ongoing support post release, he would be at low risk of reoffending.
I agree with the assessment of Ms Morris that, if adequate support is provided, it is likely that the offender will maintain his motivation to rehabilitate and the risk of reoffending will be greatly reduced.
The offender has been assaulted in prison and is serving his sentence in protective custody. There was no material before the Court to the effect that serving a sentence in protective custody is particularly onerous, but I infer that it does involve some disadvantage in the sense of restricted opportunities to associate with other inmates.
Comparable cases
In relation to sentences imposed for the offence of committing an act endangering life, I was taken to the decision of Penfold J in R v Pattman [2017] ACTSC 331, particularly at [78]. Her Honour referred to a number of previous cases in which, for offences of relatively high objective seriousness, the starting point for the sentence was about four years’ imprisonment.
Reference was made to the ACT Sentencing Database but neither party submitted that it assisted in relation to a sentencing pattern, particularly given the objective seriousness of the offences for which I am to sentence the offender.
Other sentencing considerations
I have had regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). I accept the prosecution’s submission that the principal offences before the Court are in a similar category to “drive-by shootings”, which may occur in the context of gang rivalry and are of grave public concern. In relation to such matters, general deterrence, denunciation, and recognition of harm to the community are important sentencing purposes.
Having regard to the offender’s substance abuse and neurological and psychological problems at the time when the offences were committed, and his apparent commitment to rehabilitation in relation to those problems, rehabilitation is also an important sentencing objective. It will be recognised partly in the new non-parole period that I fix.
Insofar as they are known and relevant, the considerations in s 33 of the Sentencing Act have been addressed above.
The offender’s counsel conceded that the only appropriate sentence was a significant sentence of fulltime imprisonment.
Sentences
The offender is convicted of all offences and sentenced as follows:
(e)CAN10507/18 – Discharge Firearm Endanger Life – three years and three months’ imprisonment, reduced from four years’ imprisonment, from 9 October 2020 to 8 January 2024.
(a)CAN10506/18 – Arson Building/Vehicle – two years and 10 months’ imprisonment, reduced from three years and six months’ imprisonment, from 9 March 2022 to 8 January 2025.
(b)CAN10784/18 – Unauthorised Possession – nine months’ imprisonment, reduced from 12 months’ imprisonment, from 9 August 2020 to 8 May 2021.
The total period of imprisonment (including the sentences that the offender is already serving) will be six years and eight months’ imprisonment, from 9 May 2018 to 8 January 2025.
I fix a new non-parole period that is 46 months of the total period of imprisonment. The non-parole period will now expire on 8 March 2022.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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