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Court of Criminal Appeal 23 February 2009

Sproates v Regina

[2009] NSWCCA 29

Assault & violenceFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE MALICIOUS INJURY WITH INTENT (S 33)

Citation: Sproates v Regina [2009] NSWCCA 29
Court: Court of Criminal Appeal, New South Wales
Date: 23 February 2009
Judge(s): Grove J, Blanch J, Kirby J (Kirby J delivered the principal judgment; Grove J and Blanch J agreed)

Background

The appellant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. The offence arose from a shooting outside a licensed club in the early hours of 2 July 2006, in which the victim sustained a bullet wound to the abdomen that caused life-threatening internal injuries requiring multiple emergency surgeries. The victim survived but suffered severe and lasting consequences.

On the evening in question, the appellant had attended the club with family to celebrate his birthday. He was carrying a loaded pistol in his waistband. After being escorted from the premises following an altercation inside, the appellant approached the victim, who was waiting for a taxi, drew the pistol, and pointed it at him. When the victim followed him to a parked car, the appellant fired three shots, one of which struck the victim.

Conlon DCJ in the District Court sentenced the appellant to 12 years imprisonment with a non-parole period of eight years. The appellant sought leave to appeal that sentence, arguing primarily that insufficient weight had been given to his subjective circumstances, including his consumption of alcohol and the drug "ice" (methamphetamine) on the night of the offence.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence in the context of the standard non-parole period regime under the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge gave inadequate weight to the appellant's intoxication (alcohol and methamphetamine) as a mitigating factor going to culpability
  • Whether the appellant's subjective case more broadly warranted a lesser sentence than that imposed

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach. Kirby J, with whom Grove J and Blanch J agreed, found that the offence was objectively very serious. The appellant had attended a public venue with a loaded, multi-shot firearm. He had made repeated threats during the incident, drew the weapon on the victim while the victim was seated, and fired three shots in a public carpark.

On the central question of intoxication, the Court examined whether the consumption of alcohol and methamphetamine operated to mitigate the appellant's culpability or to aggravate the offence. The Court confirmed the general principle, drawn from earlier authority, that self-induced intoxication is not automatically mitigating. Where intoxication results from alcohol, it may in some circumstances reduce moral culpability. However, where the intoxicant is a self-administered illegal drug, and particularly where the offender knew the drug produced paranoia and agitation, that knowledge is more likely to aggravate than to mitigate.

In this case, the appellant was aware that methamphetamine made him "paranoid and edgy" but chose to consume it nonetheless. His significant history of alcohol abuse and violent conduct meant his behaviour that night was not out of character. The Court found that intoxication, on the facts, warranted little weight in mitigation and none in the appellant's favour when viewed against the gravity and circumstances of the offence.

The Court was also satisfied that the sentencing judge had not given inadequate weight to the appellant's subjective case overall. The non-parole period of eight years, which exceeded the standard non-parole period of seven years by one year, was consistent with the objective seriousness of the offence as found.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Self-induced intoxication does not automatically operate as a mitigating factor in sentencing; its relevance depends on the nature of the intoxicant, the offender's knowledge of its effects, and the broader circumstances of the offending.
  • Where an offender knowingly consumed a drug (here, methamphetamine) with knowledge that it caused paranoia and agitation, that fact is more likely to aggravate than to mitigate culpability, according to the Court of Criminal Appeal.
  • In dismissing the appeal, the Court confirmed that an offender's history of similar conduct and violence can limit the weight given to intoxication as a subjective mitigating factor.
  • A non-parole period exceeding the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 was upheld where the objective seriousness of the offence, combined with the offender's history and the circumstances of the attack, warranted it.
  • Carrying a loaded firearm to a public venue and discharging it multiple times in a public carpark, following repeated verbal threats, placed the offending at the serious end of the range for s 33 of the Crimes Act 1900, notwithstanding a plea of guilty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (maliciously inflicting grievous bodily harm with intent)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Way (2004) 60 NSWLR 168
- Anderson v Regina [2008] NSWCCA 211
- Mitchell & Gallagher [2007] NSWCCA 296
- R v Coleman (1990) 47 A Crim R 306
- R v Henry (1999) 46 NSWLR 346