R v Sproates

[2008] NSWDC 301

CITATION:	R v Sproates [2008] NSWDC 301
HEARING DATE(S):	19 March 2008 3 April 2008
JUDGMENT DATE:	3 April 2008
EX TEMPORE JUDGMENT DATE:	3 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Conlon SC DCJ at 1
DECISION:	CONVICTED. Sentenced to a non-parole period of 8 years to date from 3 July 2006 and expire 2 July 2014. Additional term of 4 years to expire on2 July 2018.
CATCHWORDS:	Maliciously inflict grevious bodily harm with intent - Aggravating features and element of charge - Aggravating features and prejudice - Standard non-parole period - Intoxication and drugs - Onerous custodial conditions - Aboriginality of offender
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
CASES CITED:	R v Way (2004) 60 NSWLR 168 R v White (unrep 23 June 1998 NSWCCA) R v Durocher-Yvon (2003) NSWCCA 299 R v Andrews [2007] NSWCCA 68 R v Fernando (1992) 76 A Crim R 58 R v Ceissman (2001) 191 A Crim R 535
PARTIES:	Regina Brendan Christopher Sproates
FILE NUMBER(S):	2007/00009350
COUNSEL:	Ms. B. O'Reilly (Accused)
SOLICITORS:	Mr. A. Kernaghan (Crown)

JUDGMENT

1 HIS HONOUR: The offender, Brendan Christopher Sproates, appears for sentence following his plea of guilty to a charge that on 2 July 2006 at Unanderra in the State of New South Wales he maliciously inflicted grievous bodily harm to Shane Staff with the intent to do grievous bodily harm. This offence is contrary to s 33 of the Crimes Act and carries a maximum penalty of twenty-five years imprisonment. The agreed statement of facts is contained in exhibit A and is as follows.

On the evening of Saturday 1 July 2006 the victim, Shane Michael Staff attended the Wests Leagues, Central Road, Unanderra and he attended there alone. About 7.31pm on the same evening the offender, Brendan Sproates, attended the club in the company of his sisters, Terri Lee Sproates and Melissa Sproates to celebrate his forthcoming birthday. At about 3.08am, that is in the early hours of the next day there was a physical altercation between two other male patrons within an area of the Wests Leagues Club. The altercation was diffused by security personnel. The offender was nearby when that altercation took place but was not directly involved.

The offender became agitated and remonstrated with security personnel at which time he was heard to say, “Blokes like you deserve a bullet in the head”, and, “They were being racist, I’m going to put a bullet in your head”. These comments were made towards one of the males involved in the altercation.

The victim, Shane Staff, was also in the area at the time of the altercation but was not involved. The offender was directed by security personnel to leave the premises, he initially ignored the direction and returned to the company of a male friend. Security personnel escorted the offender and the friend from the premises. As the offender and his friend were being escorted through the foyer of the premises toward the front door, the offender continued to argue with and goad security personnel. As they walked past the entrance to the poker machine area Shane Staff approached the offender and said words to the effect of, “Fucking leave him alone, he’s a mate leave him alone”. This comment related to the offender arguing with security personnel. Shane Staff walked to the foyer of the premises, used a telephone and requested a taxi. The man, Staff, exited the premises via the front doors, walked across the driveway outside and sat down on a bench seat.

As the offender was escorted through the foyer he received a call on his mobile phone, he was heard to say, “You’re out the front, yeah, no worries I’m coming out now”. Upon leaving the club the offender drew a black coloured pistol from the waistband of his pants and approached Staff who was still sitting on the bench seat. A verbal altercation took place between Sproates and Shane Staff and the offender pointed the pistol at him. The man Staff pushed the offender’s hand that was holding the gun away from him. The offender and his friend walked off into the carpark to a maroon Mitsubishi Magna XHX 219 that was being driven by another male friend. Staff stood up and followed the offender. Staff waved his hands in the air and looked towards the security personnel at the front doors of the club. Staff then turned and walked towards the vehicle. Staff yelled words to the effect of, “If you’re going to shoot me then shoot me”. While saying this he had his hands outstretched from his body. The offender walked to that vehicle, XHX 219 turned and pointed the pistol towards Staff and fired at least one shot in Staff’s direction. Staff yelled, “You fuckwit”, and continued to walk towards the offender. The offender fired at least two further shots in the direction of Staff one of which struck Staff in the abdomen causing him to fall to the ground. The offender entered the front passenger seat of the vehicle which was being driven by the male friend.

The vehicle was driven to 68 Kotara Crescent, Unanderra. After being dropped off by his friend the offender entered the residence at Kotara Crescent. The vehicle XHX 219 was stopped a short time later in Kotara Crescent due to the manner of its driving. The vehicle was identified as being used in the shooting and was subsequently searched. Upon searching the vehicle a .22 calibre bullet casing was located inside the vehicle.

Staff was treated at the scene by ambulance then taken to Wollongong Hospital and admitted to the intensive care unit and underwent emergency surgery. He underwent several operations in an attempt to stop internal bleeding and remained in a critical condition. X-rays revealed a 5 millimetre foreign object within his body and a small entry wound to the upper abdomen. Medical evidence was sought from Dr Michael Talbot as to the angle of the bullet entry. He noted the bullet entered the left side of the victim’s abdomen near the junction of the chest and abdomen and passed downwards to the right and posteriorly to lie in front of and to the right of spine (perhaps in the pancreas) having passed through the left side of the liver, the stomach and the pancreas on the way. The path of the bullet indicates the injury was not the result of a ricochet off the ground.

The carpark of Wests Leagues Club was secured and examined by crime scene investigators. Two .22 calibre fired cartridge cases and two unfired .22 calibre cartridge cases were located within the carpark area. A possible projectile impact mark was located above the front door to the Wests Leagues Club.

A search was made by investigators at the premises at 68 Kotara Crescent, Unanderra following a search warrant. During the search a box of .22 calibre unfired cartridge cases and clothing in a bag were located within a rubbish bin. Two broken mobile phones were also located within the same bin.

On the afternoon of Monday 3 July 2006 the offender attended Moruya Police Station where he was arrested and cautioned and conveyed to the Batemans Bay Police Station. After speaking with a legal representative he agreed to participate in an electronically recorded interview.

2 The statement of Dr Andrew Wan is part of exhibit A (at tab 5). That statement indicates that the victim was admitted to the Wollongong Hospital in the early hours of 2 July 2006. In the early hours of the following day he was transferred to the intensive care unit at the St George Hospital under the care of Dr Michael Talbot. In September 2006 he was well enough to be transferred back to the Wollongong Hospital (under the surgical team) while he awaited further rehabilitation at the Port Kembla Hospital.

3 The last five photographs in exhibit B were taken via CCTV and they showed the offender leaving the club with an associate. The last of those photographs shows the offender outside the club with gun in hand, arm outstretched obviously pointing it at the victim. The fact that the crime involved the use of a hand gun is not only an aggravating feature identified by the Crimes (Sentencing Procedure) Act, section 21A(2)(c) but also at common law. Another aggravating factor is that the offence also involved a grave risk of death to another person or persons (s 21A(2)(1b) of the Crimes (Sentencing Procedure) Act).

4 In the statement of Dr Michael Talbot (dated 16 April 2007 tab 4 exhibit A) the doctor stated as follows in the last paragraph:

“Mr Staff has certainly been very lucky to have got over his significant injuries. When I performed my operation on him to help control his bleeding virtually every injury had been repaired but it was obvious that he had an injury to his abdominal wall, the left side of his liver, his stomach and his pancreas and some of his large abdominal vessels. It was only due to a fair does of luck and extremely hard work by Dr Malouf that he is still alive I suspect”.

5 Ms O’Reilly, counsel for the offender submitted that, “It is an element of the offence that ‘grievous bodily harm’ may involve grave risk of death”. That is not necessarily so and I am clearly of the view that in the circumstances of this case this aggravating factor is present. I note that this particular provision was introduced by the Crimes (Sentencing Procedure) Amendment Act 2007 which commenced on 1 January 2008. However, the amending Act applies to an offence wherever it is committed unless a conviction or plea has been entered before 1 January 2008. In this regard the offender originally pleaded guilty in the Local Court on 23 May 2007 to one charge of discharge loaded firearm with intent to do grievous bodily harm (s 33A(1)) and a charge of maliciously inflicting grievous bodily harm (s 35(1)(b)). On 22 February 2008 the DPP (understandably) presented a fresh indictment containing the present s 33 charge of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. Ms O’Reilly has argued that as a result of the fresh indictment the offender is now subject not only to a charge that carries a standard non-parole period but that he has been prejudiced by the legislative changes that I have just referred to. My response to that argument is that the court would also have been entitled to have regard to this aggravating feature at common law and therefore it cannot be said that the offender has suffered prejudice.

6 The offence does carry a standard non-parole period of seven years. The standard non-parole period represents the non-parole period appropriate for conduct within the middle of the range of objective seriousness for such an offence. Standard non-parole periods strictly apply only to offences upon conviction after trial (see R v Way (2004) 60 NSWLR 168). Although there has been a plea of guilty in the present case the standard non-parole period remains a reference point for the assessment of the appropriate sentence. In R v Way the court accepted a submission that the task of determining what is an offence in the middle of the range of objective seriousness

“should be approached intuitively and should be based upon the general experience of the courts in sentencing for the particular offence” (para 74).

7 Ms O’Reilly suggested a number of mitigating factors under s 21A were present. She referred to the fact that the offence was not planned. I am of the view little weight can be attributed to this factor as the evidence was that the offender went to the club armed and had been carrying a gun in public for some time. Ms O’Reilly also submitted that there was some provocation of the offender by the victim. In R v White (unreported 23 June 1998 NSWCCA) Spigelman CJ said that:

“Not in every case does the explanation of the offender’s conduct, whether characterised as provocation or not, operate as a mitigating factor. The motive must impinge upon the offender’s moral culpability. The degree to which motive can be seen as pertinent depends on all the circumstances, the most significant of which is the nature of the offence”.

The actions of the victim in the present case cannot in my view operate as a mitigating factor.

8 The offender has shown remorse and he does have reasonable prospects of rehabilitation. Upon a consideration of all of these factors my assessment of the objective seriousness is that it falls towards the upper end of the range just short of the worst case category.

9 A victim impact statement was received pursuant to s 28 of the Crimes (Sentencing Procedure) Act. I have considered that statement. The harm to the victim is a relevant consideration in sentencing and, of course I have had regard to it in assessing the objective seriousness of the offence. However, as the infliction of grievous bodily harm necessarily involves “substantial injury” I do not take this into account as an additional aggravating factor under s 21A(2)(g).

10 I now turn to the subjective matters in respect of the offender. He is twenty-six years of age. His criminal record is not extensive. He received a community service order in 2003 for an offence of obtain money by deception. Following a breach the order was converted into periodic detention for a term of six months. In 2004 for offences of cultivate prohibited plant, possess prohibited drug and goods in custody he was placed on s 9 bonds to be of good behaviour for eighteen months.

11 The report (dated 20 October 2007) of Ms Katie Seidler, Clinical and Forensic Psychologist, is exhibit 1. A detailed background history is provided in that report and in particular on pp 2 and 3 the following appears:

“Mr Sproates reported that he was born in Australia, is the second eldest of four children to the union of his natural parents, Mr Sproates identified as Aboriginal through inheritance of his mother who is reportedly a full blooded Aboriginal woman. He stated that he has an elder sister aged twenty-eight and both a younger sister and a younger brother aged 24 and 21 respectfully.

According to Mr Sproates the relationship between his parents broke down when he was approximately eleven years of age. He recalled his parents arguing regularly and Mr Sproates added that he was also witness to frequent episodes of domestic violence within the home”.

12 Ms Seidler also commented:

“Mr Sproates reported that his father has worked in the trucking industry both as a mechanic and a driver. Mr Sproates claimed that his father was a heavy drinker of alcohol who would be intoxicated several times each week and it was on these occasions that he tended to be most violent. Mr Sproates decided his father as the primary disciplinarian of the children in his family and although he used harsh physical discipline as punishment Mr Sproates did not identify this as either excessive or abusive.

Mr Sproates stated that he lived with his father after his parents separated. However, when he was about thirteen and in his first year of high school he became ill after contracting chicken pox and without telling him of his intentions, Mr Sproates claimed that his father returned him to his mother’s care where he has remained ever since. Mr Sproates reported that he became very angry with his father at this perceived abandonment and as such he did not talk to his father for over eight years...Mr Sproates relationship with his father has improved in recent years and reportedly remain in regular contact”.

13 The report further stated:

“Mr Sproates reported that his mother was also a heavy drinker during his teenage years after separating from Mr Sproates’ father and this had an adverse impact on her ability to care for her children which, without consistent care and support, forced Mr Sproates into an uneasy and early independence. Mr Sproates added that the relationship with his mother has also improved with time and they too are in regular contact with one and other.

Mr Sproates’ mother was reportedly a full-time carer to her children and she survived financially through the assistance of social security. Therefore Mr Sproates claimed that the family were significantly disadvantaged through poverty and at times went without food. There was apparently little external support for the family and hence the older children contributed to the family financially when they were able”.

14 Further material contained in that report indicated that the offender completed his high school studies in year 9 and reported satisfactory academic progress and behaviour, however, he did not continue with school. Upon leaving he participated in both welding and Aboriginal arts and culture practice courses through TAFE, although he failed to complete both courses seemingly due to an unstable lifestyle and substance abuse.

15 He apparently never participated in the competitive workforce which he attributed to having maintained an unstable lifestyle revolved around drug use and socialising with peers. He informed the psychologist that he has worked intermittently on a casual basis labouring but he has generally survived financially through anti-social activities and social security benefits.

16 He first consumed alcohol around the age of thirteen years. However, he did not identify his use of alcohol as being problematic either in terms of its regularity or severity. He was first exposed to cannabis around the same age, that is thirteen. His use increased and at sixteen was smoking on a daily basis. He acknowledged being addicted to cannabis believing that he was unable to sleep or function properly without the drug. At around age twenty he first used amphetamines and ecstasy. He progressed to the use of crystal methamphetamine in the months leading up to his offending.

17 In respect to the offence itself the offender informed Ms Seidler that he was under the influence of both crystal methylamphetamine and cannabis. He stated he was shocked by his behaviour and according to Ms Seidler he expressed seemingly appropriate remorse for his offending, particularly relating to the impact on the victim. He indicated that he handed himself into the police after the event but remained confused about his intentions in firing a weapon.

18 He also informed Ms Seidler that around the age of twenty-three he and his brother were physically assaulted in a bar fight. He said that although he was not seriously injured in the incident he claims he became depressed and despondent afterwards, in addition to experiencing elevated levels of anxiety about his personal safety and the motives of others. He stated that this precipitated his being in possession of a firearm after this time.

19 Ms Seidler concluded that:

“Mr Sproates’ offending behaviour is best understood within the context of his pre-existing vulnerabilities and an unstructured lifestyle superimposed by illicit drug use and anti-social peer influence”.

20 The offender gave evidence in these proceedings. He referred to the incident in the hotel where he and his brother were attending a pool competition, this is the incident well before the present offence. He said that they were attacked by a group of about ten persons, he said he and his brother sustained injuries including bruising to the face area. He said this occurred about twelve months before the present offence and thereafter he said, “I didn’t feel the same, I felt down, I didn’t go out that much after that”. He said that when he went out thereafter he was armed with the hand gun. He said he came into possession of that gun about eighteen months before the offence.

21 On the night of the offence he said he had been drinking fairly steadily, drinking schooners and Sambucas. He said he was not falling down drunk but he did not have a full memory of the evening. He said his use of ice made him paranoid and edgy, it would make him think that something was going to happen to him. He said he could not remember holding the gun out as shown in the last photograph in exhibit B and he could not remember the victim slapping the gun away.

22 He said that he had asked for a copy of the victim impact statement. He said, “I was shocked by what I read...this was the first time I knew the degree, the amount of injuries he sustained”. He also said, “I feel guilty and sorry”.

23 Whilst in custody he said he was a sweeper, referring to it as a position of trust. He also said that for a while he was the Aboriginal delegate and attended meetings with the wing manager and the area manager. As a result of some threats that were directed towards him he was placed in protection.

24 I have sought to clarify the fact of his protection with counsel today and Ms O’Reilly has informed the court that he is on a non-association protection order. Ms O’Reilly commented that is not strict protection and as she understood it was the least severe form of protection. The courts are obliged to take into account that a sentence may be served on protection, particularly if that would impact upon the person’s access to treatment and rehabilitative services. In R v Durocher-Yvon [2003] NSWCCA 299 that case indicated that because a person may have to serve a sentence in more onerous conditions will not always result in a shorter sentence. That case went on to examine the various types of protection in which a prisoner may be required to serve his sentence. It referred to prisoner informers and persons giving assistance to authorities and also persons convicted of child sexual assault. It went on to say:

“In other cases...there may have to be closer scrutiny given to just what effect that factor should have on the sentence to be imposed having regard to the seriousness of the offence, the purposes of punishment and the nature of the conditions of custody which the offender may have to bear by reason of his or her protected status”.

25 So far as the offender’s present protection order, I am of the view that this will have very limited impact on what I ultimately regard to be an appropriate penalty in this case.

26 The offender’s mother, Eileen Sproates also gave evidence. She acknowledged that her parenting left a lot to be desired as a result of her alcohol use. She described the offender as always having been a quiet child who never really communicated to other people. She said that leading up to the commission of this offence she noticed a change in him, she said she put this down to marijuana as she did not know about the other drugs. She stated that following the offence the offender would ring her every day and enquire as to the victim’s progress. She said that when he read the victim impact statement she could tell he was shocked and very upset commenting, “He usually doesn’t show his emotions, I could tell he was upset”.

27 Contained in Ms O’Reilly’s written submissions was that the court should take into account the offender’s Aboriginality. In clarification of that issue today Ms O’Reilly acknowledged that the Fernando principles certainly have no bearing in respect to this offender. In R v Andrews [2007] NSWCCA 68 the court reminded sentencing judges that the principles in Fernando (1992) 76 ACrimR 58 do not justify unwarranted leniency when sentencing indigenous offenders and in Andrews the court went on to refer to the decision in Ceissman (2001) 191 ACrimR 535 where Woods CJ at CL referred to Fernando and said, “It is not to be regarded as a decision justifying special leniency merely because of the Aboriginality of the offender”.

28 As already indicated Ms O’Reilly did not seek to place the submission any higher than the fact that his Aboriginality is simply another matter that I should take into consideration and I do that.

29 The offender is entitled to have his plea taken into account in mitigation of penalty, this is done on two bases, to reflect the utilitarian benefit to the criminal justice system and to reflect contrition. As earlier indicated he pleaded guilty in the Local Court on 23 May 2007. He also pleaded guilty to the fresh indictment when presented on 19 March 2008, consequently it is a plea at the earliest opportunity and in my assessment the utilitarian value will be reflected by a discount of about 25%.

30 I have taken into account the purpose of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to s 5 of that Act and having considered all possible alternatives and the objective seriousness of this offence I am satisfied that no penalty other than imprisonment is appropriate. I find special circumstances being the offender will be serving his first full-time custodial sentence. He is still a young man and will require an extended period of supervision to assist his rehabilitation back into the community. I regard this as sufficient reason to vary the statutory ratio. Yes, Mr Sproates, would you stand.

31 You are convicted of this offence and I sentence you to a non-parole period of eight years imprisonment to date from 3 July 2006 and to expire on 2 July 2014 when you will become eligible for parole. I sentence you to an additional term of four years imprisonment to expire on 2 July 2018.

37 KERNAGHAN: Your Honour there’s a s 166 charge of possession of firearm, in my respectful view that’s subsumed by the nature of the charge that’s proffered on the indictment, I ask your Honour to dismiss that matter.

38 HIS HONOUR: Yes that will be dismissed.

39 KERNAGHAN: Thank you, your Honour.

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