R v Sidaros (No 4)
[2020] ACTSC 87
•15 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sidaros (No 4) |
Citation: | [2020] ACTSC 87 |
Hearing Date: | 15 April 2020 |
DecisionDate: | 15 April 2020 |
Before: | Murrell CJ |
Decision: | Offender sentenced to total of 14 years’ imprisonment with an eight-year nonparole period. Reparation order for $20,000. See [108]–[114]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted murder – Intentionally inflict grievous bodily harm – Act endangering life – Arson – Aggravated burglary – Discharge loaded firearm – Dishonestly ride in motor vehicle – Failure to properly store ammunition – Joint criminal enterprise – Guilty verdicts – Outlaw motorcycle gang – Risk of recidivism – General and personal deterrence |
Legislation Cited: | Crimes Act 1900 (ACT) ss 12, 19, 27(3)(d), 117 Crimes (Sentencing) Act 2005 (ACT) ss 7, 19, 33 Firearms Act 1996 (ACT) s 181(1)(b) |
Cases Cited: | Cheung v The Queen [2001] HCA 67; 209 CLR 1 Filippou v The Queen [2015] HCA 29; 256 CLR 47 R v Wrigley [2015] ACTSC 114 |
Parties: | The Queen (Crown) Axel Sidaros (Offender) |
Representation: | Counsel S Drumgold SC (Crown) K Ginges with S Pararajasingham (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Numbers: | SCC 312 of 2018 SCC 313 of 2018 |
Murrell CJ
Introduction
On 5 December 2019, a jury found that, on 28 June 2018, the offender had committed the following offences:
(a)Attempting to murder the complainant, contrary to s 12 of the Crimes Act 1900 (ACT) (Crimes Act), by virtue of s 44 of the Criminal Code2002 (ACT) (Criminal Code) (Count 1). This offence carries a maximum penalty of life imprisonment.
(b)Intentionally inflicting grievous bodily harm on the complainant, contrary to s 19 of the Crimes Act (Count 2). This offence carries a maximum penalty of 20 years’ imprisonment.
(c)Attempting to destroy or damage 20 Carter Crescent, Callwell, by means of fire or explosive, with intent to endanger the life of another person, contrary to s 117 of the Crimes Act, by virtue of s 44 of the Criminal Code (Count 3). This offence carries a maximum penalty of 25 years’ imprisonment.
(d)Entering or remaining on 20 Carter Crescent, Callwell as a trespasser with intent to commit arson in the company of unknown persons and having an offensive weapon with him, contrary to s 312 of the Criminal Code (Count 4). This offence carries a maximum penalty of 2,000 penalty units, 20 years’ imprisonment, or both.
(e)Causing damage by fire to three vehicles (a Mercedes, a BMW, and a Holden utility), contrary to s 404 of the Criminal Code (Count 5). This offence carries a maximum penalty of 1,500 penalty units, 15 years’ imprisonment, or both.
(f)Intentionally and unlawfully discharging loaded firearms causing the complainant’s partner reasonable apprehension for her safety, contrary to s 27(3)(d) of the Crimes Act (Count 6). This offence carries a maximum penalty of ten years’ imprisonment.
(g)Dishonestly riding in a motor vehicle belonging to someone else, contrary to s 318(2) of the Criminal Code (Count 7). This offence carries a maximum penalty of 500 penalty units, 5 years’ imprisonment, or both.
Other than Count 7, all offences were part of a joint criminal enterprise.
The offender is also to be sentenced for the transfer offence that, on 26 July 2018, he failed to store firearm ammunition in an approved locked container, contrary to s 181(1)(b) of the Firearms Act 1996 (ACT). This offence carries a maximum penalty of 12 months’ imprisonment.
The offender has been in custody since 30 August 2018. The sentences will commence on that date.
Facts
The facts adopted by a sentencing judge must be consistent with the jury’s verdicts: Cheung v The Queen [2001] HCA 67; 209 CLR 1 at [14] (referring to R v Isaacs (1997) 41 NSWLR 374 at 377-378), [169]. A fact may not be taken into account against an offender unless it has been established beyond reasonable doubt, but may be taken into account in the offender’s favour if it is proven on the balance of probabilities: Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [64], [66].
As at 28 June 2018, there were tensions between the complainant and the Comancheros Outlaw Motorcycle Gang (the Comancheros). The complainant had been the President/Commander of the ACT Chapter of the Comancheros from 2014 until early 2018. In early 2018, there was a division within the Comancheros. Members in the ACT had aligned with the former Sergeant-at-Arms, Pitasoni Ulavulu (“Soni”), and the complainant had left the Comancheros in bad standing.
After the complainant left, there continued to be significant tensions between the complainant and the Comancheros. On one occasion, a bullet narrowly grazed the complainant’s head. The relationship further deteriorated when he provocatively burned his “colours”, refused to pay a penalty for leaving the group, and flaunted these matters on social media.
On 19 March 2018, a person linked to the Comancheros posted an image to Snapchat, stating “peter zdravkovic you and your crew got 24hours to hand over everything bikes, your [Mercedes vehicle], colours everything or else the HITSQUAD gonna show up to your family’s”.
On 4 June 2018, police told the complainant that he was threatened.
As at June 2018, the offender was associated with the Comancheros, as a nominee or prospective member. He was committed to improving his status within the Comancheros and gaining his “patches”. Fully patched members have top, bottom, and middle rocker patches sewn onto their jackets. In order to become a fully patched member, prospective members are usually required to follow the orders of members, including by undertaking illegal activity. Nominees and members may be rewarded for undertaking illegal and violent acts, and the rewards may include accelerated membership status.
On 10 June 2018, the offender searched the Internet for “carter crescent calwell”. He took a screenshot of the Google Maps satellite image with a pin drop on the nature strip opposite 20 Carter Crescent, Calwell. The complainant, his partner, and their son lived at 20 Carter Crescent, Calwell (the premises).
On 21 June 2018, a silver Toyota Prado vehicle (the vehicle) was stolen from a Downer residence. There was no evidence that the offender was involved in the theft.
At about 10.30 PM on 28 June 2018, the offender and two other persons were dropped in the street behind the premises. They climbed the back fence of the premises. They wore “hoodies”, full length clothing, and gloves by way of disguise. The offender was carrying an Adler 12-gauge shotgun and a second person was carrying a .45 calibre handgun. The third person was unarmed. They walked through the backyard and the garage of the property and opened the roller door at the front of the garage (Count 4 – Aggravated burglary).
The offender and a second offender walked back and forth between the garage and the rear sliding door of the house that led to the living area. The master bedroom, bathroom, and second bedroom opened from the living area. The third offender waited for the vehicle to arrive at the front of the premises.
The vehicle arrived at the front of the premises, driven by the fourth offender. The third offender retrieved a jerry can of petrol from the vehicle and poured it onto the parked cars in and near the garage (a Mercedes vehicle, a BMW vehicle, and a Holden utility vehicle) and onto the back patio.
The fourth offender retrieved another jerry can from the vehicle and walked towards the rear sliding door to the house.
At this time, the complainant stepped out of the bathroom, which was adjacent to the master bedroom. The offender and the second offender saw the complainant and started shooting into the house towards the bathroom and master bedroom. The shots caused damage to the doorway of the master bedroom, the rear bedroom doorway, and the blinds and windows in the master bedroom (Count 1 – Attempted murder).
The complainant’s partner had been in bed watching videos on her mobile telephone while her three-year-old son was asleep in a separate bedroom.
When the shots were fired, the complainant told his partner to “get down”. She hid on the floor between the bed and the window. One of the shots that was fired into the master bedroom passed through the mattress inside the bedroom and lodged in the bedframe, very close to where the complainant’s partner was sheltering (Count 6 – Act endangering life).
Meanwhile, the fourth offender poured petrol onto the living room floor through the shattered rear sliding door.
The complainant retrieved his firearm and fired back at the offenders. One of the shots lodged in the wall of a neighbouring house. The offenders fled towards the vehicle.
As they were fleeing, the offenders ignited the petrol that had been poured onto the vehicles in the garage area (Count 5 – Arson). The fire did not travel to the petrol inside the house, possibly due to the location of a drain or grate.
The offender and his three companions then drove away in the vehicle (Count 7 – Dishonestly ride in a motor vehicle without consent).
At some stage, a shot struck the complainant’s left hand. He was taken to hospital with life-threatening injuries. The injury to his left middle finger rendered part of it unsalvageable and it was amputated and surgically repaired at the mid-phalanx joint. The complainant also underwent surgery for an extensor tendon injury to his ring finger and excisional debridement to remove two glass foreign bodies from his foot (Count 2 – Intentionally inflict grievous bodily harm).
The police located a burnt-out vehicle a short distance from 20 Carter Crescent, which was confirmed to be the stolen vehicle.
On 8 July 2018, about 10 days after the offences, the offender was photographed on his motorbike wearing full Comanchero colours, indicating that he had become a fully patched member.
On 26 July 2018, police executed a search warrant at the offender’s premises. The offender showed them a locked firearm safe that contained his Adler 12-gauge shotgun. Police seized the shotgun. During the search, they also found a slip of paper with “10 Carter Crescent” handwritten on it and 12-gauge Winchester shotgun cartridges, similar to the cartridges that had been found at the scene. The ammunition was stored in a green metal tin (transfer charge – failure to store ammunition). Police seized clothing and footwear.
The co-offenders have not been identified.
Victim Impact
The complainant’s partner read a victim impact statement.
She said that she still fears for her life, believing that gang members may repeat the surreal and horrific attack. She suffers from depression, extreme anxiety, panic attacks, and insomnia. The incident has affected her ability to concentrate properly at work and has caused difficulties with friends and family. She takes medication and is seeing a counsellor. She is deeply disturbed at the impact of the event on her son.
Following the incident, her son was severely traumatised and was literally shaking with fear. Since the incident, he cannot sleep properly and has lost weight. He talks about “the bad guys” and is fearful that they will return. He is often inconsolable.
Objective seriousness
As the offender’s guilt in relation to Counts 1–6 is based on joint criminal enterprise, it is necessary to consider his particular conduct in order to identify the level of his culpability: R v Wright [2009] NSWCCA 3 at [28]–[29].
In relation to all offences, the objective seriousness was increased by the fact that they were committed in the context of outlaw motorcycle gang criminality and the general motive for the offences was retribution and extra-curial punishment, at least by means of arson and with the prospect of an assault involving firearms.
The offender’s unedifying motive was the desire to become a patched member of an outlaw gang which, as an organisation, was determined to enforce gang “law” by committing serious offences against community law.
The offences occurred at night, at and within the home of the complainant and his family (including his young son, although there is no clear evidence that the child directly observed any offence). In her victim impact statement, the complainant’s partner vividly described the violation of the safety of her home.
The offences were associated with significant planning. Having searched Google Maps for the complainant’s street, the offender had prior knowledge of the complainant’s whereabouts (although I accept that the offences may not have been planned at the time that the search occurred), a stolen vehicle was obtained, loaded guns were carried, as were jerry cans filled with petrol, and the offenders were disguised.
On the other hand, I accept that, given the offender's low status within the Comancheros, he would not have played a key role in planning the incident. I also accept that, had he declined to be involved or withdrawn his involvement, it is likely that he would not have gained promotion within the gang. The CCTV footage that was tendered confirms that on the night of the incident, the offender appeared to be a follower rather than a leader in relation to the entry onto the property and engagement in the incident.
Many of these features are not relevant in relation to an assessment of the objective seriousness of Count 7.
In relation to Counts 1, 2, 3, 5, and 6 (but not Count 4 as “in company” is a component of the offence alleged), the fact that the offence was committed in company is an aggravating feature; an offence can occur by joint commission where offenders are not present at the same time, directly participating in the offence, or where only two people are involved, and this incident involved four offenders who were present at the scene.
Count 1: Attempted murder
Although the offence of attempted murder carries the same maximum penalty as the offence of murder, for obvious reasons offences of attempted murder are generally (though not necessarily) of somewhat lower objective seriousness than those of murder.
I accept the defence submission that the evidence did not establish beyond reasonable doubt that the offence was agreed before the offenders arrived at the premises. It is possible that the intent to kill was formed after the group arrived. The focus at the outset was on arson. The offence may have been the unplanned (but reasonably foreseeable) adjunct to a planned arson and assault offences of lesser seriousness than attempted murder. I accept the defence submission that the fact that the offender used his own registered firearm suggests that the attempted murder by shooting may not have been pre-meditated. Had he thought about it (and, of course, we do not know whether he did), he would have realised that he could possibly be traced via the firearm.
However, the offender and another offender did attend the premises with loaded firearms. It is undeniable that it was reasonably foreseeable that, once a loaded firearm was taken into such an environment, such an offence might occur.
The evidence did not clearly establish that the offender fired most of the shots.
In addition to the matters that render all offences of significant objective seriousness, in relation to this offence it is relevant that weapons (several firearms) were employed in an endeavour to kill the complainant and at least eight shots were fired towards him. Initially, the complainant was defenceless. The shots were fired from close quarters and it may have been only a matter of luck that the complainant was not killed.
In R v O’Neill [1996] 2 Qd R 326 at 441, Dowsett J said that attempted murders “in which the attempt is premeditated and without any justification, reason or excuse … other than self-interest … call for very severe sentences”. His Honour added that “[i]t is the intention to kill which is the most serious aspect of the offence of attempted murder, not the consequences to the victim” and notes that “[p]remeditation, if present, is also of great importance”.
As mentioned, I am not satisfied beyond reasonable doubt that there was, in this case, pre-meditation in the sense that, prior to the group arriving at the premises, there was pre-meditation concerning the murder of the complainant by means of firearms. However, the taking of the firearms to the location was pre-meditated and provides a context to the commission of the offence of attempted murder.
The general circumstances in which the offence occurred were terrifying, both to the complainant and to his family. Inevitably, the offence has had a significant impact on the complainant’s partner and child.
Objectively, the offence was a very serious offence of its type.
Count 2: Intentionally inflict grievous bodily harm
The offence was closely associated with the offence of attempted murder and was, in effect, the result of a failed attempted murder.
Within the range of injuries that constitute grievous bodily harm, the injury that was inflicted was not in the most serious category.
The sentence imposed for this offence should be largely concurrent with that imposed on Count 1.
Count 3: Attempted arson of premises with intent to endanger life
The considerations relevant to assessing the objective seriousness of an arson offence were set out in R v Wrigley [2015] ACTSC 114 at [34] and have been referred to in numerous other cases, including R v Hodge [2019] ACTSC 15.
In this case, the offence was planned and executed for the purpose of revenge and punishment. An accelerant was used. The offence was committed in company. It occurred at the complainant’s home when he and his immediate family members were at home. The circumstances in which the offence occurred were terrifying. It was only a matter of good fortune that the premises were not ignited with very serious consequences.
Although the offender did not do any of the physical acts constituting the offence, he was party to the joint criminal enterprise to commit this very serious offence.
It could be said that there is a significant overlap between the attempted murder charge and this charge. However, in relation to the arson charge, the means by which lives were endangered was not the use of a firearm, but a completely different and equally dangerous means, i.e. by igniting an accelerant.
Count 4: Aggravated burglary with intent to commit arson
This offence was a prelude to Counts 3 and 5.
Count 5: Arson of three vehicles
The arson involved three items of substantial value. As was the case with Count 3, the offender did not commit any of the physical acts constituting the offence. Very significant damage was caused to the items in question amounting to many thousands of dollars.
Count 6: Intentionally discharge firearm causing person to fear for safety
There were multiple discharges into the bedroom of the complainant and his partner and in that vicinity. The offence occurred at night, when it was expected that the complainant would be there and, at least, the offenders should have realised that his partner would also be there.
One of several bullets that was discharged lodged very close to where the complainant was hiding. The purpose of the discharge was presumably to kill the complainant. It was not just an intentional discharge that resulted in another person being fearful. In other words, it was not just a case of intent in relation to the discharge. It was associated with an intent to kill someone. Naturally, the complainant’s partner fears a repetition.
It is not possible to find beyond reasonable doubt as to which offender fired the shot that lodged in the mattress.
This was a very serious offence of its type.
Count 7: Dishonestly ride in motor vehicle
The purpose for which the offender rode in the stolen vehicle was to attend and leave the scene of very serious crimes, avoiding detection. It was an offence of significant objective seriousness. However, there was no evidence that the offender was aware of the circumstances in which the vehicle was dishonestly taken.
Subjective factors
The offender was 23 years old at the time of the offences. He is now 25 years old; still a young man.
Other than driving offences, the offender has no criminal history. However, since being remanded in custody, he has been disciplined within the prison.
The offender is of Egyptian background. He is the oldest of four children. He grew up in western Sydney and moved to the ACT with his family in 2009, when he was about 15 years old.
The offender's father gave evidence that in kindergarten, the offender was bullied, and his secondary schooling was also marred in that he was targeted on social media and ridiculed in other ways. He was a quiet and socially awkward boy.
After he came to Canberra, he struggled to adjust. He had few friends at school and indeed the school contacted his family because they were concerned that he was being bullied because of his ethnic background and obesity. Unsurprisingly given the difficulties that he experienced more or less throughout his schooling, he achieved poor academic results. However, in the later school years, he did develop an interest in fitness.
The offender completed Year 12. Thereafter, he obtained certificates in fitness. He then decided to follow his grandfather's career and become a carpenter. Before he was arrested in relation to these matters, he had completed most of a four-year carpentry apprenticeship, working for various employers.
The offender’s father believes that it was through one of his employers that, in early 2018, he was introduced to outlaw motorcycle gangs. In the first half of 2018, his brothers observed unusual behaviour including behaviour involving firearms. The offender was involved in conflicts with a couple of his very few friends.
Prior to his incarceration, the offender used cannabis daily. He was an occasional user of cocaine and a weekly user of illegally obtained prescription medication.
Since his admission to custody, the offender has experienced thoughts of self-harm and suicidal ideation.
Regrettably, having become associated with the Comancheros in early 2018, the offender has chosen to remain associated. Apart from his family, many of his contacts appear to be Comancheros members.
I accept the submission that the offender's attraction to the Comancheros is consistent with him having a longstanding, almost lifelong, difficulty fitting into normal society and being accepted in normal society. The Comancheros represent a brotherhood in which he can be accepted by engaging in criminal activity.
The association has continued while the offender has been in custody. The prosecution provided a letter from the offender to a person associated with the Comancheros, written in June 2019. The letter demonstrated a continuing desire for acceptance by the Comancheros. It also manifested a neediness and lack of maturity. The offender has had telephone calls with persons associated with the Comancheros. On one occasion, he posed with a group of Comancheros associates within the prison.
The offender accepts no responsibility for the offences and continues to deny any knowledge of or involvement in the offences. He told the pre-sentence report author that he believed that the jury’s verdicts were wrong and had been influenced by his ethnicity.
The author of the pre-sentence report opined that the offender’s continuing membership of the Comancheros, “combined with his custodial behaviour, indicates he is choosing an antisocial life for himself with no desire for reform”.
I agree with that observation.
Nevertheless, the offender was assessed as at medium to low risk of general reoffending on the bases that he enjoyed family support and stable accommodation and had a good employment history.
I cannot accept the assessment that he is at medium to low risk of general reoffending. I consider that the offender represents a substantial risk of recidivism. Although he is now in his mid-20s, he shows no insight, remorse, or acceptance of wrongdoing. He remains stubbornly attached to the Comancheros, an organisation that does not adhere to ordinary standards of behaviour and morality. The Court has limited confidence in the offender’s capacity to mature into a productive member of society.
Comparable cases and statistics
The following cases are somewhat comparable.
In R v Sharp [2019] ACTSC 175, the offender had pleaded guilty at a criminal case conference to intentionally and unlawfully discharging a loaded firearm so as to cause another person reasonable apprehension for their safety, causing damage to property (two cars and one house), and unauthorised possession of a firearm. He was a nominee for the ACT chapter of the Comancheros and the offences related to a dispute with the Sergeant-at-Arms of the ACT chapter of the Nomads outlaw motorcycle gang, the complainant in the matter.
The offender drove to the complainant’s house, where he lived with his father and girlfriend. He dispersed petrol over the vehicles parked outside and then ignited a fire, which spread to the front of the house. He then fired two shotgun rounds from the driveway towards the front window of the house, where the complainant’s father was sleeping. The offender stated that he had expected that the Comancheros would reward him with a patch for his vest in recognition of his conduct.
The offender was sentenced to three years and three months’ imprisonment (reduced from four years’ imprisonment) for discharging a firearm so as to endanger life. He was sentenced to two years and 10 months’ imprisonment (reduced from three years and six months’ imprisonment) for arson damaging a building and vehicles. He was sentenced to nine months’ imprisonment (reduced from 12 months’ imprisonment) for unauthorised possession of a firearm. His total sentence was four years and three months’ imprisonment.
In R v Christopher Pattman; R v Stephen Pattman [2017] ACTSC 331 (Pattman), the co-offenders were father and son who had been members of the Rebels outlaw motorcycle gang from 2010 to 2014. When they left, tensions emerged between the co-offenders and the ACT State President of the Rebels.
Stephen Pattman (the father) pleaded guilty to one count of act endangering life by intentionally and unlawfully discharging a loaded firearm so as to cause another personal reasonable apprehension for their safety. Two offences relating to unauthorised possession of a firearm and ammunition were taken into account on sentencing. Christopher Pattman (the son) pleaded guilty to one offence of unauthorised possession of a prohibited firearm.
On the day of the offences, there was a meeting between the co-offenders and two Rebels members, Mr Haddad and Mr Avery, at Stephen Pattman’s residence. The Rebels members arrived in a car and parked in front of the residence. An argument developed around the car. Christopher Pattman handed Stephen Pattman a .44 Magnum revolver, which he pointed at the gap between Mr Haddad’s head and the driver’s seat head rest. He pulled the trigger and the bullet passed through the driver’s seat and front passenger seat head rests before shattering the rear passenger side window and exiting the vehicle.
Stephen Pattman had a “virtually clean criminal record”. He was sentenced for discharging the firearm to three years and 11 months’ imprisonment (reduced from four years and four months’ imprisonment), to be served by intensive correction order. Christopher Pattman was sentenced for possession of a prohibited firearm to 14 months’ imprisonment, reduced from 16 months’ imprisonment, suspended with immediate effect upon entering a good behaviour order for 14 months.
The comparable cases referred to in Pattman demonstrate that, for offences of act endangering life of relatively high objective seriousness, the sentence starting point has been about four years’ imprisonment: at [78].
In R v Rappel [2017] ACTSC 38, the offender had pleaded guilty to the murder of his former partner, contravention of a protection order, assault occasioning actual bodily harm, and reckless infliction of grievous bodily harm. He had come to the deceased’s house in contravention of a domestic violence order and killed her with an axe in front of her children. He had also injured two other people at the house, one with the axe (grievous bodily harm) and one by punching him in the face (actual bodily harm). For the offence of recklessly inflicting grievous bodily harm, he was sentenced to two years and 11 months’ imprisonment, reduced from three years and six months’ imprisonment.
In R v Forster-Jones (No 2) [2019] ACTSC 286, the offender had pleaded guilty to all charges except murder: aggravated burglary, three counts of assault occasioning actual bodily harm, wounding, inflicting actual bodily harm, and aggravated robbery. On day two of the murder trial, he pleaded guilty. The offences occurred over two days and related to the purchase of drugs.
The offender and two others went to the deceased’s apartment armed with a gun, a machete, and a metal pole. They forced entry to the apartment and one co-offender struck the deceased in the head. The offenders demanded drugs. The deceased was struck with the machete on his right wrist. The other persons present were wounded and assaulted.
At a later date, the offender and the two co-offenders attended the deceased’s apartment. The offender was armed with a shortened shot gun and machete. The offenders tried to enter. The offender then fired a shot through the wooden door, which penetrated the door and struck the deceased, causing fatal injuries. The offenders forced the door open to search for drugs, stepping over the body of the deceased.
The offender had multiple mental health problems. He was sentenced to a total sentence of 40 years, 5 months and 23 days’ imprisonment, including seven years’ imprisonment for aggravated burglary.
In R v Vickerstaff (No 2) [2019] ACTSC 343, the offender received a sentence of nine years and three months’ imprisonment for manslaughter (reduced from 10 years’ imprisonment) with a nonparole period of six years and six months’ imprisonment. He was the principal of three joint offenders who had attended the deceased’s house intending to assault and/or rob the deceased. An altercation had ensued, as a result of which the deceased lost a significant amount of blood. The offenders fled and the deceased died in front of a neighbour’s house while attempting to obtain help.
None of these cases is factually close to the present case. However, they provide a flavour for the sorts of sentences that have been imposed in somewhat similar contexts, not necessarily for the same offences as those the subject of the present case.
Statistics
I am well aware of the limitations of bare statistics.
However, for what it is worth, I note that, in this jurisdiction, sentences for murder are often in the range of 10 to 20 years’ imprisonment. There is very little data in relation to sentences for attempted murder.
In relation to offences of intentionally inflict grievous bodily harm, sentences are often in the range of two years and six months’ imprisonment to six years’ imprisonment.
There is very limited statistical information in relation to the offences of arson and act endangering life.
In relation to aggravated burglary, sentences are often in the range of 18 months’ imprisonment to three years and six months’ imprisonment.
Sentences for riding in a motor vehicle without consent are often in the range of six to 12 months’ imprisonment.
The statistical material seems to fit with the cases to which I have referred.
Sentencing purposes and other sentencing considerations
I have had regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and to the matters to which I am required to have regard by s 33 of the Sentencing Act, insofar as they are known and relevant. I have referred to the relevant matters above.
Offences that occur in the context of gang rivalry are of grave concern. In relation to such matters, sentencing purposes of general deterrence, denunciation, and recognition of harm to the community are important sentencing purposes.
In this case, given the offender's continuing association with the Comancheros, personal deterrence is also a very important sentencing objective.
The offences were part of a single course of conduct that occurred within the space of about five or 10 minutes. It is necessary to recognise the independent criminality of each offence, but as they were part of a short, single course of conduct, there should be a substantial degree of concurrency between these sentences.
Sentences
Imprisonment
It is beyond dispute that no sentence is appropriate other than a very significant sentence of full-time imprisonment.
I impose the following sentences:
(a)Count 1: Attempting to murder the complainant—nine years’ imprisonment, from 30 August 2022 to 29 August 2031.
(b)Count 2: Intentionally inflicting grievous bodily harm on the complainant—four years’ imprisonment, from 30 August 2028 to 29 August 2032.
(c)Count 3: Attempting to destroy or damage the premises by means of fire or explosive, with intent to endanger the life of another person—seven years’ imprisonment, from 28 February 2020 to 27 February 2027.
(d)Count 4: Entering or remaining on the premises as a trespasser with intent to commit arson in the company of unknown persons and having an offensive weapon with him—three years’ imprisonment, from 28 February 2019 to 27 February 2022.
(e)Count 5: Causing damage by fire to three vehicles—four years’ imprisonment, from 30 August 2019 to 29 August 2023.
(f)Count 6: Intentionally and unlawfully discharging loaded firearms causing the complainant’s partner reasonable apprehension for her safety—four years’ imprisonment from 30 August 2024 to 29 August 2028.
(g)Count 7: Dishonestly riding in a motor vehicle belonging to someone else—18 months’ imprisonment, from 30 August 2018 to 28 February 2020.
(h)Transfer charge: Failing to store firearm ammunition in an approved locked container—one month’s imprisonment, from 30 August 2018 to 29 September 2018.
The effective sentence is 14 years' imprisonment, from 30 August 2018 to 29 August 2032.
In fixing the nonparole period, I note that, as things stand, there is a limited prospect of rehabilitation. However, the offender is still a very young man. He will serve many years in custody and it is to be hoped that, because he is still young, these years will see him emotionally mature such that he is ready to take advantage of the strong community support that is available to him upon his release.
Consequently, I fix a nonparole period of eight years' imprisonment (57 per cent of the total term of imprisonment), from 30 August 2018 to 29 August 2026.
Reparation order
In relation to the application for reparation made under s 19 of the Sentencing Act, given the period of imprisonment that will be served, there is a very limited prospect of the offender paying any significant amount of reparation before he is released. There is no point in imposing an order for the whole amount that was ultimately claimed of approximately $85,000. Further, the offender was one of four offenders.
However, the offender and co-offenders attended the premises with the intent of causing significant property damage and they succeeded in that endeavour. Consequently, in the exercise of my discretion, I consider that it is appropriate to make some order for reparation.
I make a reparation order in the sum of $20,000.
| I certify that the preceding one hundred and fourteen [114] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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