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District Court 9 June 2017

R v Kirk

[2017] NSWDC 195

Assault & violenceDrugsFirearms & weapons
CRIMINAL LAW SENTENCE ONGOING SUPPLY RECKLESS WOUNDING DRUG ADDICTION

Citation: R v Kirk [2017] NSWDC 195
Court: District Court of New South Wales
Date: 9 June 2017
Judge: Berman SC DCJ

Background

The offender, a long-term drug user, appeared for sentencing on four offences spanning late 2015. The first area of offending involved 15 transactions in which he supplied or agreed to supply methylamphetamine and heroin, amounting to approximately 25 grams supplied and 10 grams agreed to be supplied. He conducted this street-level dealing primarily to fund his own drug habit.

The second area of offending arose from a domestic dispute. The offender's partner had been subjected to a campaign of harassment by her former partner, including the posting of intimate images online and to her employer and teenage son. Believing the former partner was also responsible for nails placed in her car tyres, the offender decided to take revenge.

On 17 November 2015, the offender armed himself with a sawn-off double-barrel shotgun and fired it twice at the victim's car, which was parked outside the victim's home. The offender did not know the victim was sitting inside the car at the time. The first shot missed; the second struck the victim, leaving pellets embedded in his body and causing lasting physical and psychological harm. The offender also faced a charge of driving whilst disqualified, dealt with by way of a section 166 certificate.

  • What sentences were appropriate for the offence of ongoing supply of a prohibited drug?
  • What sentences were appropriate for firing a firearm in a manner likely to injure persons or property, using an unauthorised prohibited firearm (a sawn-off shotgun), and reckless wounding?
  • How should the sentencing court address the overlap in criminality across the three firearm-related offences without double-counting?
  • Whether a finding of special circumstances was warranted to extend the parole period, given the offender's rehabilitation needs?
  • What weight should be given to the offender's guilty plea, drug addiction, background, and the aggravating circumstance that he was on a section 9 good behaviour bond at the time of offending?

Decision

The court accepted that the offender's drug addiction, difficult upbringing, and the circumstances of the shooting were relevant mitigating factors. His mother suffered from paranoid schizophrenia and was hospitalised when he was 12, leaving him largely without effective parenting. He later fell in with antisocial peers and developed a serious drug dependency that underpinned most of his criminal history. The court found there were reasonable prospects (though not good prospects) of rehabilitation.

A 25% discount was applied across all offences in recognition of the offender's early guilty pleas. The court also acknowledged that the victim's conduct, while not a justification, provided some context for the offender's motivation. At the same time, the court was clear that the use of a sawn-off shotgun fired at a car without first checking whether it was occupied was a serious act of violence.

On the overlap between the three firearm and wounding offences, the court declined to treat elements already captured by one charge as aggravating factors in another. Doing so, the court reasoned, would amount to impermissible double-counting. The circumstance that the offender was subject to a section 9 bond at the time of offending was treated as a genuine aggravating factor.

The court made a finding of special circumstances, reducing the proportion of the sentence to be served before parole eligibility. The rationale was not to benefit the offender but to extend the period of supervised parole, which Berman SC DCJ explained serves the community's interest by allowing structured monitoring and the possibility of residential rehabilitation upon release.

Orders Made

  • Drive whilst disqualified (s 166 certificate): Fixed term of 3 months imprisonment, commencing 16 January 2016.
  • Aggregate sentence (ongoing supply, firing a firearm, using an unauthorised prohibited firearm, and reckless wounding): Non-parole period of 4 years and 6 months, with a head sentence of 7 years and 6 months, commencing 16 January 2016. Parole eligibility from 15 July 2020.
  • Backup matters on the s 166 certificate were withdrawn and dismissed.

Note: The individual indicative sentences, had an aggregate not been imposed, were recorded as: ongoing supply, 4 years; firing a firearm, 3 years; using an unauthorised prohibited firearm, 4 years (NPP 2 years); reckless wounding, 3 years (NPP 18 months).

Key Takeaways

  • The District Court confirmed that an offender's provocation or motive, even where a victim's prior conduct was genuinely disgraceful, does not diminish the seriousness of responding with lethal firearm violence.
  • Where multiple charges arise from the same incident and their elements overlap, the sentencing court must take care not to treat a factor already captured by one charge as an aggravating feature of another. Double-counting is an error of principle.
  • A finding of special circumstances to extend the parole period is not a concession to the offender but is directed at community protection: supervised parole reduces re-offending risk more effectively than a straight release at sentence expiry.
  • Early guilty pleas attracted a 25% discount, consistent with the court's recognition of the utilitarian value of such pleas across all charges.
  • Drug addiction, an unstable upbringing, and a history of relapse were treated as relevant background matters going to moral culpability, though the court distinguished between finding "reasonable" and "good" prospects of rehabilitation, declining to make the stronger finding on the facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): offences of firing a firearm in a manner likely to injure persons or property (maximum 10 years), using an unauthorised prohibited firearm (maximum 14 years, standard non-parole period 4 years), reckless wounding (maximum 7 years, standard non-parole period 4 years)
- Drug Misuse and Trafficking Act 1985 (NSW): ongoing supply of prohibited drugs (maximum 25 years)
- Road Transport Act (NSW): drive whilst disqualified
- Criminal Procedure Act 1986 (NSW): s 166 (certificate procedure for driving offences), s 9 (good behaviour bond)

Cases cited: None cited in the provided judgment text.