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District Court 7 April 2020

R v Sharp

[2020] NSWDC 167

Firearms & weaponsPublic order & justice offences
SENTENCING MANUFACTURE A MILITARY STYLE WEAPON USE PROHIBITED WEAPON IMPROVISED EXPLOSIVE DEVICE PIPE BOMB LOW IMPACT EXPLOSION. SENTENCING

Citation: R v Sharp [2020] NSWDC 167
Court: District Court of New South Wales
Date: 7 April 2020
Judge: Haesler SC DCJ

Background

The offender was in a relationship with a woman who had a confrontation with two victims in a McDonald's drive-through in Warrawong in February 2019. A minor road-rage incident followed. The offender, not directly involved in that encounter, took it upon himself to pursue and intimidate the victims.

His conduct escalated rapidly. Within hours of the initial incident, he attended the victims' home armed with a baseball bat and caused $10,000 damage to their vehicle. He also created fake Facebook profiles to send threatening and intimidating messages. Days later, he constructed a pipe bomb using PVC pipe, sparklers, circuit boards, and soldered batteries, and attached it to the victims' car in the early hours of 5 March 2019. The device detonated at 3.45 am. Damage to the vehicle was relatively minor, and no one was physically injured.

The offender was arrested on 2 April 2019. A search of his home uncovered an electronic control device, an extendable baton, and a small quantity of methylamphetamine. He pleaded guilty in the Local Court to all matters and provided some assistance to police regarding a separate matter.

  • What was the appropriate sentence for manufacturing a military-style weapon (a pipe bomb) contrary to s 25A(2) of the Weapons Prohibition Act 1998, which carries a maximum of 20 years imprisonment?
  • What was the appropriate sentence for using a prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1998, which carries a maximum of 14 years imprisonment and a standard non-parole period of five years?
  • What discounts applied for the early guilty plea and the assistance provided to police?
  • What weight should be given to the objective seriousness of the offending, the offender's personal circumstances, and the principles of retribution, deterrence, and totality in arriving at an aggregate sentence?

Decision

Haesler SC DCJ characterised the offending as serious, planned, and escalating. The judge emphasised that the criminal law exists in part to prevent people from taking the law into their own hands when they believe they have a grievance. The offender persisted in targeting the victims across multiple incidents, tracking them and repeatedly attending their home. The pipe bomb, while designed to intimidate rather than injure, was still placed under a car in a residential driveway and detonated in the early hours of the morning.

His Honour found the use of the prohibited weapon offence to be the most serious charge. Although the offender claimed he designed the device to avoid significant explosion, the Court noted it had been placed under a vehicle near its petrol tank, creating real risk. The fact that the offender was quickly apprehended did not mitigate the gravity of the conduct, and his poor attempts to avoid detection were not treated as mitigating factors.

The offender received a 25% discount for his guilty pleas entered in the Local Court, reflecting their utilitarian value. A further 10% reduction applied under s 23 of the Crimes (Sentencing Procedure) Act 1999 for assistance provided to police in relation to another matter, producing a total sentence reduction of 35%. The Court was careful to ensure the process of accumulating multiple sentences did not erode those discounts.

His Honour found special circumstances warranting a departure from the standard non-parole period, citing both the aggregation factor and the need to allow for an adequate period of supervised parole. The judge concluded his remarks by observing that the offender did not appear, even at sentencing, to fully appreciate the seriousness of what he had done.

Orders Made

  • Two Commonwealth offences (use of a carriage service to threaten harm): fixed terms of 8 months imprisonment each, commencing 2 May 2019.
  • Manufacture of a military-style weapon (s 25A(2) Weapons Prohibition Act 1998): 2 years and 7 months imprisonment (as an indicated sentence forming part of the aggregate).
  • Use of a prohibited weapon (s 7(1) Weapons Prohibition Act 1998): 4 years and 3 months imprisonment with a non-parole period of 2 years and 9 months (as an indicated sentence forming part of the aggregate).
  • Aggregate NSW sentence: 5 years imprisonment, commencing 2 June 2019, with a non-parole period of 3 years. Eligible for parole from 1 June 2022, with a parole period of 2 years.
  • Effective total custodial term (including time served from 2 April 2019): 5 years and 1 month, with an effective non-parole period of 3 years and 2 months.
  • Prosecution granted liberty to apply for a Victims Compensation order within 28 days.
  • Form 1 matters (property damage, intimidation, possession of prohibited weapons, possession of prohibited drug) taken into account on the relevant head sentences.

Key Takeaways

  • The District Court treated a pipe bomb detonation motivated by a personal grievance as a serious example of its kind, notwithstanding that the device caused limited physical damage and was designed without intent to injure.
  • Offences such as manufacturing and using improvised explosive devices attract strong sentencing responses on the grounds of retribution and community protection, even when the immediate harm is modest, because the conduct fundamentally undermines the community's expectation that disputes are resolved through proper channels.
  • A combined 35% sentence reduction was available where an offender entered guilty pleas in the Local Court (attracting a 25% utilitarian discount) and provided assistance to police under s 23 of the Crimes (Sentencing Procedure) Act 1999 (attracting a further 10%).
  • Where multiple sentences are accumulated, courts must ensure that the process of accumulation does not erode discounts for guilty pleas and assistance that were calculated on each individual sentence.
  • A finding of special circumstances can rest on more than one basis: here, both the aggregation of sentences and the need for adequate post-release supervision supported a departure from the standard non-parole period.

Legislation and Cases Referenced

Legislation
- Weapons Prohibition Act 1998 (NSW), ss 7(1), 25A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 54B
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes Act 1914 (Cth), ss 16A, 17
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Ryan v The Queen (2001) 206 CLR 267
- R v Windle [2012] NSWCCA 222
- R v Herring (1956) 73 WN (NSW) 203
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Thompson v R (2000) 49 NSWLR 383
- Xiao v R [2018] NSWCCA 4
- R v Tuala [2015] NSWCCA 8
- R v JDX [2017] NSWCCA 9
- Carr v R [2014] NSWCCA 202
- Tepania v R [2018] NSWCCA 247
- Grube v R [2005] NSWCCA 140
- Attorney General's Application No 1 [2002] 56 NSWLR 146