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District Court 18 May 2018

R v Tylan Brown

[2018] NSWDC 265

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCING AN UNEXPLAINED SHOOTING BENEFIT OF ACQUITTAL PARITY PRINCIPLES IMPACT ON COMMUNITY VICTIM IMPACT

Citation: R v Tylan Brown [2018] NSWDC 265
Court: District Court of New South Wales
Date: 18 May 2018
Judge: Haesler SC DCJ

Background

Following a jury trial in February 2018, the offender was convicted of two offences arising from events on 3 February 2017 in the southern Wollongong area: taking and driving a conveyance without consent (under s 154A(1)(b) of the Crimes Act 1900) and firing a firearm in a public place (under s 93G(1)(b) of the Crimes Act 1900). He was acquitted of two further counts, and the sentencing court was careful to give him the full benefit of those acquittals.

The offences involved the offender travelling in a stolen vehicle with a co-offender, McGarrigle, and an unidentified woman. At one point that evening, someone fired shots at a parked car outside a residential property. Later, a shot was fired into the air outside a home in Koonawarra where several children were present and had to be hidden for their safety. A Snapchat message the offender sent shortly before the second incident indicated he was aware of and willing to participate in the joint criminal enterprise.

McGarrigle had already been sentenced by the same judge on 20 April 2018, receiving an aggregate term of five years and six months with a non-parole period of three years. The present sentencing exercise required the court to apply parity principles while accounting for the offenders' different roles, criminal histories, and personal circumstances.

  • Whether the sentencing court could make factual findings that went beyond or behind the jury's acquittals on the other two counts
  • How parity principles applied given that McGarrigle had pleaded guilty and had a less serious criminal history, while the offender had prior convictions for violence and had previously served custodial sentences
  • What weight to give to the offender's intellectual disability, ADHD, and personal history when balancing general deterrence, denunciation, personal deterrence, retribution, and rehabilitation
  • Whether special circumstances existed to justify extending the proportion of the sentence served on parole (the non-parole to head sentence ratio)
  • How victim impact material should be treated, and what circumspection is required in that context

Decision

The court carefully reconciled the jury verdicts by finding that the offender only became aware a firearm would be used after the first shooting at Penrose. His involvement in the principal firearm offence was therefore limited to roughly ten minutes, and the court could not find on the balance of probabilities that he was the actual shooter. Sentencing proceeded on the basis that he was a knowing participant in a joint criminal enterprise in which one shot was fired into the air at the second location.

On parity, the court acknowledged that McGarrigle bore greater overall culpability because he had participated in both shootings from the outset, whereas the offender's involvement was shorter and his role in the second incident less clearly defined. However, the offender was older, had prior convictions for violence, and had served two prior custodial sentences. The absence of an early guilty plea also meant he received no utilitarian discount, unlike McGarrigle. These factors justified a different, and in some respects more severe, sentencing outcome despite the shorter period of involvement.

The court gave weight to the offender's intellectual disability and ADHD, noting these conditions help explain his continued offending and must moderate, to some degree, the emphasis on general deterrence and retribution. At the same time, the court noted that the community has a genuine interest in rehabilitation and that supervision in the community for as long as possible was a desirable outcome. Special circumstances were found to exist, warranting a longer balance of term to facilitate extended supervision on parole.

The court also noted the need for circumspection when considering victim impact statements in a case involving unexplained and apparently random offending. While the harm to victims and the broader community warranted recognition, subjective factors on both sides had to be weighed carefully and proportionately.

Orders Made

  • Driving conveyance without consent: sentence of one year and three months
  • Firing a firearm in a public place: sentence of four years
  • Aggregate sentence: four years and three months, commencing 7 February 2017, expiring 6 May 2021
  • Non-parole period: two years and nine months, commencing 7 February 2017
  • Earliest release date: 6 November 2019
  • Balance of term: one year and six months

Key Takeaways

  • A sentencing court must give an acquitted offender the full benefit of all acquittals, meaning factual findings at sentence cannot go behind or contradict those verdicts, even where strong circumstantial evidence exists.
  • Parity principles do not require identical sentences for co-offenders in the same criminal enterprise. Different roles, criminal histories, and procedural histories (such as whether a guilty plea was entered) can all justify divergent outcomes, provided like is compared with like.
  • Where an offender has an intellectual disability and ADHD, those conditions must be taken into account in moderating the weight given to general deterrence and retribution, though they cannot displace those sentencing objectives entirely, particularly for serious offences involving firearms in public.
  • Offences involving the public use of firearms attract a significant requirement of general deterrence and denunciation, even when moderated by an offender's personal circumstances.
  • The District Court identified the community's interest in the offender's rehabilitation as a legitimate sentencing consideration, supporting a finding of special circumstances and a longer period of post-release supervision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93G(1)(b), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- BP v R (2010) 201 A Crim R 379
- DPP v De Le Rosa [2010] NSWCCA 194
- Engert v R (1995) 84 A Crim R 67
- Johnson v R [2010] NSWCCA 124
- KT [2008] NSWCCA 51; 182 A Crim R 571
- Mill v The Queen (1988) 166 CLR 59
- Veen v The Queen (No 2) (1988) 164 CLR 465