Sentence Imposed Against Offender for Unlawful Discharge of Firearms
R v Antoniak [2021] ACTSC 228 (9 September 2021)
The offender was charged for intentionally and unlawfully discharging loaded arms, intentionally causing damage to property, and using a prohibited firearm. There had been a number of mentions but there were negotiations between the Crown regarding his sentences. The Court, in determining the appropriate sentence for the offender, relied upon the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
Facts:
On 3 November 2020, Mr Brodie Antoniak, the offender, was charged for intentionally and unlawfully discharging loaded arms, intentionally causing damage to property, and using a prohibited firearm. Such offences followed a heated dispute between the offender and the two victims, Mr Garry Hughes and Ms Alinta Parsons, about a Ford utility vehicle (the Ute), which the offender had owned since August 2020. The offender stayed with the victims and their two young children at a residence in Narrabundah (the residence), from 5 October 2020 until 10 October 2020, when he was asked to leave. When he moved out, the offender left the Ute there as the vehicle was unregistered.
On Wednesday 3 November 2020, the offender and two others travelled from Batemans Bay, NSW to the ACT to collect Ute from the residence. The offender arrived at the residence at about midday in a silver Holden Commodore (Commodore), accompanied by a female, who was the ex-partner of the offender, and her son. A dispute arose between the victims and the offender as to the ownership of the utility. He left but then came back on the same day.
The offender jumped onto the roof and kicked the windscreen of that car. The damage included a large dent to the roof and a large foot sized hole and cracks in the front windscreen, rendering it temporarily undriveable. The offender drew a sawn-off rifle in the direction of Mr Hughes causing him and Ms Parsons to run inside the residence in immediate fear of their lives. The offender was arrested and taken into custody on 4 November 2020. He pleaded guilty to the above offences on 7 July 2021.
Issue:
Whether or not it is appropriate to discount the sentences.
Applicable law:
Crimes Act 1900(ACT) s 27 - prohibits and provides acts which may be considered as endangering life.
Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 35 - provides the purposes for which a court may impose a sentence on an offender. The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
Criminal Code 2002 (ACT) s 403 - prohibits intentionally causing damage to property.
Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 - Refshauge J emphasised the purpose in considering an offender’s criminal record.
McLeod v The Queen[2018] ACTCA 59 - held that after-effects of offending are considered separately in the context of factors listed in s 33 of the Sentencing Act.
Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - held that objective seriousness is determined without reference to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending.
O’Brien v R [2015] ACTCA 47 - where the Court had regard to the totality principle in structuring the sentences, as well as the principles of cumulative and concurrent sentence order.
R v EL [2016] ACTSC 241- Penfold J stated that: “it would be curious if intensive correction orders were only available to people who really did not need any help”.
R v Hancock [2021] ACTSC 52 - provided for the approach when dealing with rolled up charges.
R v Kilic [2016] HCA 48; 259 CLR 256 - held that the sentencing court must consider where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the worst category.
R v Mikac[2018] ACTSC 269 - provides that the use of the prohibited firearm is also objectively very serious. Firearms offences are matters of significant objective criminality.
R v Mitchell [2016] ACTSC 85 - provides that the objective seriousness may be assessed by reference to a number of factors:
(a) Possession or use of the prohibited firearm.
(b) Nature of the prohibited firearm.
(c) Purpose for possession or use of the prohibited firearm.
(d) How the prohibited firearm came into the possession of the offender.
(e) The length of time that the prohibited firearm was in the possession of the offender or used by the offender.
(f) The storage of the prohibited firearm.
(g) Whether the prohibited firearm was loaded or not.
R v Shearer[2020] ACTSC 100 - Mossop J summarised the considerations relevant to assessing the objective seriousness of an offence.R v Zdravkovic (No 3) [2020] ACTSC 258 - provide guidance as to matters that may be relevant in assessing the objective seriousness of the offence.
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 - referenced by Refshauge J in emphasising the purpose in considering an offender’s criminal record.
Analysis:
The statement of agreed facts provided that:
(a) contemporaneous eye witness identification of the offender, who was known to the victims, in the emergency call Mr Hughes made to police;
(b) the corroborating evidence of the conduct by an independent neighbour who also made a contemporaneous statement to police; and
(c) a detailed expert forensic report (which was before the Court without objection).
The offence occurred in a residential area, at the victims’ home, a place where they were entitled to feel safe. There was a degree of planning, in that the offender drove away from the residence and then returned, armed, on the same day. The offending in relation to the discharge of the firearm here was both brazen and extremely dangerous. The offender’s voluntary intoxication and the fact that he was affected by drugs at the time do not mitigate his responsibility for the conduct. The objective seriousness of this offence is high.
There were negotiations between the Crown and the offender and the plea was entered at the first opportunity after an agreement about the charges was reached. While it was accepted by the offender that a sentence of imprisonment is the only appropriate sentence with respect to the offences, it was then submitted that the avenue that would best promote the offender’s rehabilitation might be taken into account in terms of how a prison sentence might be served.
Conclusion:
Having regard to the utilitarian value of the pleas and the matters set out in s 35(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the Court concluded that it is appropriate to discount the sentences by 15%. The Court held that a sentence of full-time imprisonment is the only appropriate sentence for each of the three offences. For the discharge of the firearm, the offender is convicted and sentenced to imprisonment for 20 months (reduced from 24 months on account of his guilty plea), starting on 4 November 2020 and ending on 3 July 2022. For the use of a prohibited firearm, the offender is convicted and sentenced to imprisonment for 10 months (reduced from 12 months on account of his guilty plea), starting on 4 January 2022 and ending on 3 November 2022.
For intentionally causing damage to property, the offender is convicted and sentenced to imprisonment for 4 months (reduced from 6 months on account of his guilty plea), starting on 4 September 2022 and ending on 3 January 2023. The non-parole period is to commence on 4 November 2020 and end on 3 May 2022.
