R v Poole
[2014] NZHC 1126
•22 May 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2012-070-4753 [2014] NZHC 1126
THE QUEEN
v
STEPHEN DENNIS POOLE RAYMOND CHARLES PERRY JOHN PAUL MURPHY
Counsel: G C Hollister-Jones for Crown
C Anderson for S D Poole
T F Rickard-Simms for R C Perry
B J Hesketh for J P MurphySentence:
22 May 2014
SENTENCING NOTES OF KATZ J
Solicitor: Ronayne Hollister-Jones Lellman, Tauranga
Jackson Reeves, Tauranga
Pacific Coast Law, Papamoa
Counsel: P Mabey QC, Tauranga C Anderson, Tauranga B J Hesketh, Hamilton
R v POOLE, PERRY AND MURPHY [2014] NZHC 1126 [22 May 2014]
Introduction
[1] Mr Poole, you appear today for sentencing on charges of aggravated burglary, injuring with intent to injure and attempting to pervert the course of justice.
[2] Mr Perry, you appear for sentence on charges of aggravated burglary, injuring with intent to injure, reckless discharge of a firearm and arson.
[3] Mr Murphy, you appear for sentence today on charges of attempted murder, aggravated burglary, injuring with intent to injure, burglary (x2), arson and reckless discharge of a firearm.
[4] You were each found guilty of those charges following a jury trial in
February this year.
Aggravated burglary/Injuring with intent to injure
[5] All three of you were found guilty on the charges of aggravated burglary and injuring with intent to injure. I will therefore consider the appropriate sentence in respect of those convictions first.
Facts
[6] The aggravated burglary and injuring with intent to injure charges arose out of what was referred to at trial as the “home invasion” of the first victim’s home in Tauranga on 17 May 2012.
[7] The victim of that incident was once on friendly terms with Mr Poole. They lived on the same street and Mr Poole lent him money. Tensions mounted, however, over the victim’s failure to repay the loan. Further, the victim formed a relationship with Mr Poole’s ex-girlfriend, which caused considerable distress to Mr Poole. The Crown prosecutor described Mr Poole at trial as a “possessive, brooding, jilted lover” who was consumed by hatred for the victim and thoughts of revenge. In my view such a description was amply supported by the evidence, including in particular the text messages sent by Mr Poole during the relevant period. The evidence suggests that Mr Poole’s anger and hostility towards the victim, due to his
relationship with Mr Poole’s ex-girlfriend, was a factor that strongly contributed to his decision to organise an attack on him. Retribution for the victim’s failure to repay the debt was also a contributing factor.
[8] Mr Poole procured Mr Perry, whom he knew from prison, and Mr Perry’s flatmate, Mr Murphy, to undertake the attack. After first meeting at Mr Poole’s house, they entered the victim’s house disguised in balaclavas and armed with a wooden pole and imitation pistol. The victim was struck numerous times around his face and body with the pole. He later required surgery for a fractured cheekbone. Mr Perry and Mr Murphy took his wallet and cash and some cannabis.
[9] The victim’s young daughter was at home during the incident, asleep in a
nearby bedroom. Fortunately, she did not wake up.
[10] The victim’s neighbour was less fortunate. He had stopped by that evening to help fix a computer. He was there during the home invasion. He was threatened and kicked in the face while lying on the ground, resulting in bleeding, bruising and a broken nose. He has provided a victim impact statement outlining his injuries and the impact that the attack had on him. As a result of the attack, he has invested in a more robust security system, even though the offending did not occur at his home address. He feels traumatised and extremely vulnerable as a result of the violence, and is still worried for his family. He finds himself less trusting of people and more on edge. He has now had a dramatic reduction of sleep and always plans for the worst case scenario.
Submissions
[11] The Crown contends that, despite Mr Poole’s lack of presence at the actual attack, you are all equally culpable.
[12] Counsel all agree that sentences in respect of the counts of aggravated burglary and injuring with intent to injure should be imposed concurrently, as they both relate to the same incident.
[13] There is relatively little difference between the Crown and defence counsel as to an appropriate starting point for this offending. The Crown submits that a starting point of nine years’ imprisonment is appropriate. Mr Poole, your counsel contends that a starting point of eight years and six months’ imprisonment should be adopted. Mr Perry, your counsel submitted that the appropriate starting point is eight years. Mr Murphy, your counsel took a more global approach to the overall sentencing exercise, focusing on what your appropriate end sentence on all charges should be.
Analysis
[14] Aggravated burglary is punishable by up to 14 years’ imprisonment. Injuring with intent to injure is punishable by up to five years’ imprisonment. I accept that the two counts should be sentenced concurrently, with aggravated burglary as the lead offence.
[15] As pointed out by counsel, the guideline decisions for aggravated burglary and injuring with intent are R v Mako1 and R v Taueki2 as amended by Nuku v R.3 I have reviewed those cases as well as a number of other cases counsel have referred me to.4
[16] I consider the following features of the offending to be aggravating: (a) use of a weapon;
(b) multiple attackers; (c) actual violence;
(d) harm to the victims;
1 R v Mako [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA). I note that this judgment is the guideline judgment for aggravated robbery, not aggravated burglary. However, the Court in R v Watson CA224/03, 24 October 2003 held that the principles expressed in Mako are applicable to aggravated burglary.
2 R v Taueki [2005] 3 NZLR 372, (2005) CRNZ 769 (CA).
3 R v Nuku [2012] NZCA 584.
4 Including R v Renata CA118/05, 1 May 2006; R v Spicer CA440/03, 1 June 2004 and Police v
Grant HC Wellington CRI-2005-485-162, 3 March 2006.
(e) premeditation and the use of disguises; and
(f) the element of home invasion - the first victim was attacked in the sanctity of his own home.
[17] In my view you are all equally culpable for this offending. Taking into account counsel’s submissions, the relevant case law, and the aggravating features of the offending, I consider that a starting point of eight years and six months’ imprisonment for the aggravated burglary charge reflects the culpability of each of you for this offending.
Attempting to pervert the course of justice
[18] Mr Poole, you have been convicted on one count of attempting to pervert the course of justice in relation to your conduct following the home invasion incident. This offence carries a maximum penalty of seven years’ imprisonment.5
[19] You asked a friend to pass on a message to the person who had driven Mr Perry and Mr Murphy to the home invasion incident, suggesting that he repaint his car. Your intention in doing so was to pervert the course of justice by hindering the police investigation.
[20] The Crown submitted that prior case law justifies a starting point of between two and two years six months’ imprisonment as appropriate for this offending. On the other hand, your counsel urged me to uplift your sentence by no more than four months’ imprisonment in respect of this count.
[21] I have considered the various cases referred to by counsel.6 You attempted to hinder the police investigation of offending that was very serious in nature, which in turn increases the seriousness of your attempt to pervert the course of justice. On the other hand, I accept your counsel’s submission that your attempts to hinder the
police investigation did not involve threats to the victim or attempts to exert
5 Pursuant to s 117(e) of the Crimes Act.
6 Including Millin v R [2013] NZCA 375; Manukau v R [2013] NZCA 217; Fitzgerald v R [2012] NZCA 558 and R v Drewett [2007] NZCA 48.
influence on the victim. Further, it was a was a “one off” incident, rather than a
sustained course of action.
[22] Taking all of these factors into account, against the background of the relevant case law, it is my view that a starting point of one year’s imprisonment, to be served cumulatively, is appropriate.
Reckless discharge of a firearm
[23] Mr Perry and Mr Murphy, you were both found guilty of recklessly discharging a firearm into the lounge of a man who owed Mr Poole a drug related debt.
[24] Mr Perry first did some scoping work to find out where the debtor lived and what assets he might own. It did not appear, however, that he owned anything of particular value. You then decided to either put pressure on him to pay his debt, or take revenge for him not having paid it, by shooting into his house.
[25] On the night in question you left your flat together. Mr Murphy had a sawn-off shotgun down his pants. One of you, almost certainly Mr Murphy, fired two shots through the lounge window of the debtor’s home. He was not at home but, unfortunately, his girlfriend, the second victim, was. Her young son was also asleep in an adjacent bedroom.
[26] The second victim has provided a victim impact statement. Her statement notes that her ears rung for at least a week from the noise of the shots. Although she did not sustain any physical injuries, that is a matter of luck and not because you took any steps to minimise the risk of the occupants of the house being injured.
[27] The victim was in the lounge when you shot through the window. She feared for her life. Indeed, had she not shifted the couch a few days earlier, she would have been in the direct path of the gunshot fire. The first shot went straight across her face, narrowly missing her. She then ran to the bedroom to look after her young son and was narrowly missed by the second shot while she was fleeing. It hit a door jamb, sending splinters into her face. She says in her victim impact report that this
incident was the most terrifying experience of her life, particularly given that she was at home alone with her young child at the time. She felt like she had to put her life on hold until after the court case. She is only just now starting to move on.
[28] Mr Perry and Mr Murphy, your conduct on the night in question was extraordinarily reckless. It was also premeditated and was carried out as a revenge or vigilante style attack. One of you, most probably Mr Murphy, shot the gun. The other one of you went along to provide support and encouragement. I consider you equally culpable for this offending.
[29] I have considered a number of cases relied on by the Crown as being analogous.7 In light of those cases, and taking into account the particular circumstances of your offending, I have concluded that the appropriate starting point for this offending is three years’ imprisonment. That starting point would have been significantly higher if the victim had been injured, or if you had known that she was in the lounge when the gun was fired, rather than simply been reckless as to
whether that was the case or not.
Burglary
[30] Mr Murphy, during the course of trial you pleaded guilty to two counts of burglary. The burglary involved the taking of property on two occasions valued at
$10,300 and $6,450 respectively. You stole firearms and a firearms cabinet in the first burglary and a car in the second.
[31] Your burglary victims have provided victim impact statements. One describes how the burglary made her feel violated and made her house feel unsafe.
She has lost sleep and is now more suspicious of strangers.
7 Including R v Hines CA12/99, 12 March 1999; R v Gunbie HC Auckland CRI-2005-044-1951,
16 May 2006; R v Templeton CA460/05, 6 July 2006; Gathergood v R [2010] NZCA 350 and R v
Katene HC Rotorua CRI-2008-063-4495, 23 April 2010.
[32] The two burglaries occurred during the same period as other burglary offences for which you are currently serving a five year term of imprisonment. Your counsel submitted that the current two burglary charges should therefore be seen as part of that same “spate” of offending. I accept that submission.
[33] The totality principle applies not only to sentencing on a single occasion for related or unrelated offences, but also to successive sentences for connected events, or successive but proximate sentencing for separate events.8 The correct approach at the second sentencing is for the Judge to ask what the appropriate overall sentence would have been if the offender had been sentenced on all charges at the same time.9
If you had been sentenced for these two burglary charges at the same time as the previous charges, your terms would have been served concurrently and it is quite possible that your end sentence would not have been much more than five years for all of the burglary offending, it is, however, not possible to form a final view on that without knowing the full facts of your earlier offending.
[34] I have concluded that the appropriate course in the circumstances is to sentence you to two years’ imprisonment for each burglary count, to be served concurrently with the sentence you are already serving and the further sentences you are receiving today.
Arson
[35] Mr Murphy, you pleaded guilty to the arson of a Honda Civic car during the course of the trial. The jury found Mr Perry guilty as a party to that offence.
[36] The purpose of the arson appears to have been to destroy evidence of burglaries committed previously and also evidence of the firearm used in the shooting at the second victim’s house. That firearm was placed in the car prior to it
being torched, together with the firearms cabinet stolen in one of the burglaries.
8 R v Johansen (1997) 15 CRNZ 111 (CA), at 120.
9 R v Nuku [1969] NZLR 343 (CA) at 344.
[37] I accept that there was no specific danger to other people or property, that the arson occurred in an isolated area with minimal risk to people or other property, and that the loss (being the value of the car and the value of the firearms cabinet and other items in the car) was relatively modest for this type of offending. Arson, nevertheless, is a very serious offence.
[38] The Crown submits that a starting point of around three years’ imprisonment is appropriate for both offenders, particularly given that the arson was carried out in order to destroy evidence relating to your previous offending. The Crown referred to Howarth v R,10 where the Court of Appeal noted that there is no tariff decision for arson, but that appellate authorities usually adopt starting points in the three to five year range. Lower starting points have been adopted in particular circumstances. Each case is quite fact specific.
[39] Mr Perry, your counsel contends that Mr Murphy was the main offender, and that you at most played a support role by providing transport home. Your counsel therefore contends that a starting point of one year would be sufficient to recognise your culpability.
[40] I have reviewed the various authorities relied on by the Crown as being analagous,11 and those referred to by your counsel. Most of the cases referred to by the Crown involved a starting point in the range of two years six months to three years. In light of the cases I have reviewed and the particular facts of your offending, I have concluded that the appropriate starting point on the arson charge is two years six months for Mr Murphy, who was the principal offender, and
18 months for Mr Perry, who played a lesser support role.
Attempted murder
[41] That now brings me to the most serious count, namely Mr Murphy’s
conviction for attempting to murder the first victim on 9 July 2012, two months after the earlier home invasion incident at his house.
10 Howarth v R [2010] NZCA 523.
11 Lefebvre v Police HC Christchurch CRI-2008-009-2907, 10 July 2008; R v O’Sullivan HC Whangarei CRI-2007-088-5182, 15 August 2008; R v Farrell CA303/86, 22 May 1987; R v Mohi [2007] NZCA 139; R v Golding CA329/96, 17 October 1996.
[42] On that evening Mr Murphy returned alone to the victim’s home. The victim was sitting in a chair in his lounge. Mr Murphy acknowledged at trial that he could see him sitting there, through the ranch slider. The victim was shot at close range, through the ranch slider. He sustained facial injuries, which suggests that the shot was aimed at his head, although the shot was diffused to some extent by the glass of the ranch slider door. The victim ran from the room. While he was fleeing a second shot was fired at him.
[43] I do not accept Mr Murphy’s evidence that the attack was undertaken on the spur of the moment and was not premeditated. There was compelling evidence at trial to suggest otherwise. Mr Murphy’s evidence to the contrary appeared contrived and in my view, lacked credibility. It seemed to be aimed in large part at attempting to distance Mr Poole and Mr Perry from the offending of that night.
[44] It was, in my view, clear from the overall evidence that Mr Murphy’s shooting of the first victim was premeditated and was part of an escalation of offending against the first victim which linked back to the earlier home invasion incident. The jury clearly accepted, however, that neither Mr Poole nor Mr Perry intended that Mr Murphy actually try and murder the victim and they were accordingly found not guilty of being parties to the attempted murder charge.
[45] There is no tariff case for attempted murder, due to the wide variety of circumstances in which that offence can occur.12 The Court of Appeal’s judgment in R v Taueki is often referred to as providing guidance. That case sets out guidelines for grievous bodily harm offending which has the same 14 year maximum penalty as attempted murder. So the sentencing levels and aggravating factors set out in Taueki have often been referred to in sentencing for attempted murder.13 However, this Court has noted that slightly longer sentences are often imposed for attempted
murder, because it carries with it the more serious finding of a murderous intent.14
12 See: R v Allen and Jennings CA7/88, 23 June 1988; R v Steeman CA105/03, 5 June 2003.
13 R v Amohanga HC Hamilton CRI-2006-019-2933, 6 March 2007; R v Rawiri HC Christchurch
CRI-2005-009-13229, 7 December 2006.
14 R v Craw HC Auckland CRI-2005-057-000018, 7 June 2006.
[46] The number of Taueki factors present place Mr Murphy’s offending in band three of Taueki and therefore a starting point of between nine and 14 years is appropriate. A nine to 14 year starting point is justified in cases of serious offending with three or more aggravating factors, where the combination of aggravating features is particularly grave.
[47] The aggravating Taueki factors present in this case are use of a weapon, and in this case a lethal weapon, so the factor is more aggravating, attacking the head, premeditation and the retribution or vigilante aspects to the offending. There was also harm to the victim. Although the victim received no life threatening injuries, he received 20 wounds to his face from the shotgun pellets and suffered psychological and emotional harm. Further, shooting through a glass door into the victim’s home violated the sanctity of the home as a place of safety.
[48] Most of the comparable cases involving attempted murder where the victim is shot in the head, are cases where the offender has shot a police officer.15 Those cases are more serious due to the intent to harm an official performing a public duty and they tend to attract a starting point at the top of the range (or very close to it). This case is perhaps closer to Marsters v R,16 although more serious due to the element of premeditation involved here, given that Mr Murphy went to the victim’s house with a gun. This case also had the element of violating the sanctity of the victim’s home and an element of retribution which were not present on the facts of Marsters. In Marsters v R the violence was sustained and continued for a longer period of time, however. The starting point in Masters v R was 11 years.
[49] Taking all of the factors I have outlined into account, and with reference to the sentences imposed in comparable cases, I consider a starting point of 11 years
six months’ imprisonment for the attempted murder charge is appropriate.
15 R v Smith HC Christchurch CRI-2010-009-10435, 4 November 2011; Rajgopau v R [2011] NZCA 593.
16 Marsters v R [2011] NZCA 505 at [17].
Personal circumstances
[50] I now turn to consider, for each of you, whether there are any aggravating or mitigating personal factors that could justify either an uplift or a reduction in your overall sentences.
Mr Poole
[51] Mr Poole, you are 45 years old. Having carefully read your pre-sentence report I find it somewhat surprising that you got mixed up in this offending at all. It is even more surprising that you instigated at least some of it, although it later escalated beyond your original intentions.
[52] You do not have an extensive criminal history. You have four relatively minor convictions from your youth and then did not re-offend for 17 years, until you were convicted on a raft of drug related charges in 2005. Following your release from prison in 2007 you did not re-offend until the current offending. You have no history of violence, which makes it hard to understand why, at the relatively mature age of 45, you would go out of your way to organise a brutal attack on a former associate and neighbour.
[53] You have faced significant health issues in the past and have survived cancer. At the time of your arrest for this offending you were receiving the sickness benefit. By your account it was the chemotherapy that you had to undergo that first saw you use methamphetamine, as you say it gave you the motivation to get out of bed every day. Your drug use (which you say reduced very significantly following your release from prison in 2007) and your ongoing contacts in the drug world are described in your pre-sentence report as contributing factors to your offending, although you now appear to be motivated to end your criminal associations.
[54] Your mother describes you as a doting father and grandfather. She confirms that you had been planning to move to the South Island prior to these offences occurring. You wanted to start a new life, closer to your children and grandchildren and away from your negative criminal associations.
[55] You obviously impressed the pre-sentence report writer, who believes you are genuine in your wish to rehabilitate yourself and who assesses you as being at low risk of re-offending. The pre-sentence report notes that you have insight into your offending and accept responsibility for it. That is backed up by a letter of remorse from you.
[56] You have obtained a position within the prison as “Wing Cleaner”, a position of trust within the prison. You enjoy an incident and misconduct free status in the prison. You have also undertaken a number of courses whilst in custody, such as a relationships course and a programme in wood manufacturing.
[57] Your counsel directed my attention to the decision of R v Read,17 where the Court recognised as mitigating a willingness to address offending behaviour and the undertaking of practical courses and activities whilst in custody.
[58] Rehabilitation is one of the factors I am required to take into account in sentencing you. Rehabilitation and a future life that is hopefully crime free appear to be realistic goals for you, given both your pattern of previous offending and the practical steps you have taken to improve yourself, take on responsibility and keep out of trouble in the time you have been in prison. I therefore discount your sentence of imprisonment by six months’ to reflect personal mitigating factors, including in particular the efforts you have made since being imprisoned on remand.
[59] I do not consider that there are any aggravating factors personal to you that would warrant an uplift in your sentence. Your criminal history does not include any violent offending and does not warrant an uplift.
Mr Perry
[60] Mr Perry, you are 36 years old. You have previously had gang associations, which you have apparently discontinued now. You have a fairly extensive conviction history, with 31 prior theft related convictions, seven violence related convictions,
including aggravated robbery in 1998. When interviewed by the pre-sentence report
17 R v Read [2013] NZHC 2005.
writer you presented as calm and insightful and accepted full responsibility for your part in the offending. I note that you did attempt to take part in a restorative justice process, but the conference did not proceed due to the serious nature of the offences.
[61] Your stated motive for offending was financial gain. You are assessed as being at high risk of re-offending and a high risk of potential harm to others.
[62] On your behalf, your counsel submits that credit in the realm of 12 months should be available to you for your remorse and effort to apologise for your offending and the real recognition of the distress and harm your actions have caused. You have written a letter of apology and offered to take part, as I have noted, in a restorative justice process.
[63] While I commend you for your efforts, I do not consider it appropriate to discount your sentence on account of your acceptance of responsibility and remorse. They are unfortunately rather belated, only coming after you were found guilty, following a two week jury trial, in respect of a number of charges. I am not persuaded by your counsel’s submission that you, in effect, were justified in defending all charges, because you were ultimately not convicted on the attempted murder charge. It was open to you to plead guilty in a timely fashion to those charges in respect of which you have now accepted responsibility. They related to different incidents. You could have proceeded to simply defend the attempted murder charge, in respect of which you maintained your innocence and were subsequently acquitted.
[64] Given your lengthy criminal history an uplift to your sentence could be justified. However, given the time that has elapsed since your previous aggravated robbery conviction in 1998, I have decided not to increase your sentence based on your prior convictions.
Mr Murphy
[65] Mr Murphy, you are 36 years old. You have a long list of previous convictions, spanning two decades. The majority of these are dishonesty related offences, such as burglary. You are currently serving a five-year sentence for a spate
of burglaries committed shortly after you were released from prison in 2012. Whenever you are released from prison it seems that you immediately return to burglary as a way of life. You were described at trial as a career burglar, which seems an apt description.
[66] The current offending, however, is noted in your pre-sentence report as your first foray into serious violence. That is perhaps surprising, given your evidence at trial that you carry a sawn-off shotgun in your backpack with you at all times, even when you go the supermarket. You described it as “your valium”. The extent to which you have become institutionalised was apparent when you gave evidence. You appear to have little or no insight into how deeply abnormal and out of step with mainstream society your behaviour and chosen lifestyle is.
[67] Your pre-sentence report notes that the main factors contributing to your offending are your association with individuals involved in crime, a propensity for violence, and a misguided loyalty to your associates, as well as a harmful pattern of substance abuse.
[68] You do not contest the jury’s verdicts. You acknowledged the harm you have caused. You have shown a willingness to engage in rehabilitative programmes while in prison to combat your drug use, and you have taken positive steps to avoid those associates who are a negative influence on you. You say, and your mother confirms, that you have the ongoing support of your partner, who is a positive influence on you.
[69] You are, however, assessed as posing a very high risk of re-offending, including harming others. This risk would obviously be reduced if you are genuine in your stated desire to change your ways, sever your ties with criminal associates and stop using drugs. Although I acknowledge that you have expressed willingness to try and change your ways, you have not yet, in my view, done anything tangible to that end.
[70] There are therefore no personal mitigating factors that could justify a reduction in your sentence. On the other hand, however, I have concluded that there are no aggravating factors, despite your criminal history, that would justify an uplift. In that respect I note in particular your previous lack of convictions for violent offending.
Concurrent or cumulative sentences?
[71] I now come to the issue of whether your various sentences should be served concurrently or cumulatively. If I simply added up the sentences for each offence your total terms of imprisonment would be very long. Some adjustment is therefore necessary, for each of you, to ensure that your end sentence appropriately reflects the totality of your offending.
[72] Mr Poole, your sentence for injuring with intent to injure, which I fix at three years six months, is to be served concurrently with your eight year six month sentence for aggravated burglary. Your sentence for perverting the course of justice is, however, cumulative.
[73] Mr Perry, I consider that the totality principle can be addressed, in relation to your offending, by imposing the sentences for the aggravated burglary count (eight years six months) and the reckless discharge of a firearm count (three years) cumulatively and the injuring with intent count and the arson count concurrently.
[74] Mr Murphy, your situation is slightly more complex. The Crown has submitted that the Court could view the attempted murder as part of an ongoing incident, following on from the aggravated burglary a few months prior, in which case a starting point should be taken on the lead offence of attempted murder with a concurrent sentence for the aggravated burglary, but with an uplift to account for the totality of the two separate and serious incidents.
[75] Your counsel submitted that a starting point of around 16 to 18 years would adequately reflect the totality of your offending, and that an end sentence of between
14 to 16 years should be imposed. He submitted that the attempted murder count
should be taken as the lead offence, with the other offending imposed concurrently, in order to reflect the totality principle.
[76] While the nature of the offending is such that the majority of the counts should result in cumulative sentences, I consider if that were done, there would need to be a severe adjustment to the lengths of the individual sentences to conform to the totality principle. To do this may result in the reduction of sentences “to a level which the victims of [the] offences might well [regard] as derisory”.18 Section 85(3) of the Sentencing Act 2002 provides:
(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
[77] Taking into account that principle, there are a number of different ways your end sentence could be structured. I have concluded, however, that the end result will properly reflect the totality of your offending if the attempted murder, reckless discharge of a firearm, and arson counts are served cumulatively. The aggravated burglary, injuring with intent, and two burglary counts are to be served concurrently with these sentences. All of the sentences I am imposing today are to be served concurrently with the sentence you are already serving for the spate of burglaries undertaken during the same period.
Minimum Periods of Imprisonment
[78] The Crown has suggested that minimum periods of imprisonment be considered for each of you.
[79] I am not satisfied that a minimum period of imprisonment is appropriate in respect of you, Mr Poole, for the reasons I have already outlined when considering your personal circumstances.
[80] Mr Perry, the issue is more finely balanced in relation to you. You have appeared before the Courts fairly consistently since 1995. You have also not taken any tangible steps to reform yourself. However, I am not satisfied that the ordinary non-parole period is insufficient in your case.
[81] Mr Murphy, while I recognise you have a lack of prior violence convictions, the seriousness of your offending and the level of premeditation involved in the three separate incidents of violence for which you are being sentenced today leads me to conclude that the ordinary minimum period of imprisonment would not be sufficient to hold you accountable for the harm done to your victims, or to protect the
community from you.19 I therefore impose a minimum period of imprisonment of
seven years six months on you in respect of the attempted murder charge. I also impose a minimum period of imprisonment of 18 months on you in respect of the reckless discharge of a firearm count. This results in a total minimum period of imprisonment of nine years.
Sentence
[82] Mr Poole, please stand. You are sentenced to eight years’ imprisonment on the charge of aggravated burglary. I have applied the six month discount that I am allowing to that particular sentence. You are sentenced to three years six months’ imprisonment on the charge of injuring with intent to injure, to be served concurrently. You are sentenced to one year imprisonment on the charge of attempting to pervert the course of justice, to be served cumulatively. Your end sentence is accordingly one of nine years’ imprisonment.
[83] Mr Perry, please stand. You are sentenced to eight years six months’ imprisonment on the charge of aggravated burglary. You are sentenced to three years six months’ imprisonment on the charge of injuring with intent to injure, to be served concurrently. You are sentenced to three years’ imprisonment on the charge of recklessly discharging a firearm, to be served cumulatively. You are sentenced to one year six months’ imprisonment on the charge of arson, to be served concurrently. This leads to a total term of 11 years six months’ imprisonment.
[84] Mr Murphy, please stand. You are sentenced to 11 years six months’ imprisonment on the charge of attempted murder with a minimum period of imprisonment of seven years six months. You are sentenced to eight years six months’ imprisonment on the charge of aggravated burglary, to be served concurrently. You are sentenced to three years six months’ imprisonment on the charge of injuring with intent to injure, to be served concurrently. You are sentenced to three years’ imprisonment on the charge of recklessly discharging a firearm, with a minimum period of imprisonment of 18 months, to be served cumulatively. You are sentenced to two years six months’ on the charge of arson, to be served cumulatively. You are sentenced to two years’ imprisonment on each burglary charge, to be served concurrently. All of these sentences are to be served concurrently with the sentence you are already serving. This leads to a total term of
17 years’ imprisonment, of which you will serve a minimum of nine years.
[85] You may now all stand down.
Katz J
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