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District Court 22 July 2021

R v Pratt

[2021] NSWDC 335

Assault & violenceFirearms & weapons
CRIME USE OFFENSIVE WEAPON TO INTIMIDATE IN COMPANY SENTENCING RELEVANT FACTORS TWO OFFENDERS BOTH ARMED

Citation: R v Pratt [2021] NSWDC 335
Court: District Court of New South Wales
Date: 22 July 2021
Judge: Haesler SC DCJ

Background

In March 2020, two masked and disguised men confronted a 50-year-old victim in a Wollongong carpark at night. The offender, Benjamin Pratt, carried a large hammer or mallet; his co-offender carried a shortened firearm. The pair shoved the victim into a stairwell and forced him upstairs, demanding he open a door. The victim fought back, throwing bottles and using a bamboo screen to defend himself.

Pratt then fled the scene before his co-offender shot the victim in the knee. The victim sustained abrasions and blunt force injuries consistent with the hammer handle, though the shooting caused no permanent nerve or ligament damage. Forensic investigation, including DNA analysis and CCTV review, led to Pratt's arrest in September 2020.

Pratt was sentenced for using an offensive weapon with intent to commit an indictable offence (intimidation) under s 33B(2) of the Crimes Act 1900, carrying a maximum of 15 years imprisonment. A related charge of assault occasioning actual bodily harm in company under s 59 was taken into account on a Form 1. His co-offender was listed for sentencing separately on 5 November 2021.

  • What was the appropriate sentence for the s 33B(2) offence, having regard to the objective seriousness of the conduct?
  • What weight should be given to the Form 1 offence of assault occasioning actual bodily harm in company?
  • How should the court treat the early guilty plea, and what discount applied?
  • Were special circumstances established, justifying a longer parole period relative to the non-parole period?
  • How should the court account for the offending having been committed while the offender was on parole and subject to Community Corrections Orders?
  • What mitigating weight applied to the offender's personal history, psychological state, and COVID-19 conditions in custody?

Decision

Objective seriousness: Haesler SC DCJ found the offending was seriously aggravated. Both men had planned the attack, disguised themselves, and arrived armed. Pratt was aware his co-offender was brandishing a firearm throughout the confrontation. Although Pratt was not sentenced for the shooting itself, the demands on the victim were persistent and terrifying, and the victim suffered injuries from the mallet before Pratt withdrew.

The Form 1 matter: The court treated the assault occasioning actual bodily harm as a non-trivial matter. Under the principle in Attorney General's Application No. 1, accepting guilt for the Form 1 offence entitled the court to give greater weight to personal deterrence and retribution when synthesising the overall sentence.

Guilty plea and subjective factors: Pratt entered his guilty plea in the Local Court, attracting a 25% sentence reduction for its utilitarian value. The court accepted a compelling subjective case: Pratt had a tragic personal history including the death of an infant child, which precipitated relapse into drug use. A psychologist's report and multiple character references painted a picture of an offender with genuine prospects for rehabilitation. The Sentence Assessment Report was generally positive and identified Pratt's offending as out of character. However, the court noted that Pratt had previously been treated with leniency, had a prior period of imprisonment, and had committed this offence while on parole and subject to Community Corrections Orders, all of which aggravated the sentence.

Special circumstances and COVID-19: The court found special circumstances, noting the importance of extended parole supervision for Pratt's rehabilitation, given his strong pro-social support network. The disruption to family contact caused by COVID-19 restrictions in custody was also taken into account as a relevant hardship. The court structured the non-parole period to be shorter than the statutory proportion, enabling longer supervised parole, while still imposing a non-parole period that reflected the gravity of the offence.

Orders Made

  • Pratt convicted of the s 33B(2) offence; notional head sentence (absent the guilty plea) assessed at approximately 4 years and 6 months.
  • Sentenced to imprisonment of 3 years and 4 months, comprising:
  • Non-parole period of 1 year and 8 months, commencing 20 September 2020 and expiring 19 May 2022.
  • Balance of term of 1 year and 8 months, commencing 20 May 2022 and expiring 19 January 2024.
  • Community Corrections Orders revoked; breach sentences of 3 months imprisonment (commencing 20 September 2020, expiring 19 December 2020), made concurrent with the substantive sentence.

Key Takeaways

  • A finding of special circumstances permits the court to depart from the standard non-parole proportion where extended supervision on parole is warranted by the offender's rehabilitation prospects and support network.
  • Under s 25D(2) of the Crimes (Sentencing Procedure) Act 1999, an early guilty plea entered in the Local Court attracted a 25% reduction, reflecting the utilitarian value of the plea.
  • Committing an offence while on parole and while subject to Community Corrections Orders is an aggravating factor; the District Court noted it would not double-count this factor by also imposing unrelated cumulative breach sentences, making those terms concurrent instead.
  • Where an offender accepts guilt for a Form 1 matter, the court may give greater weight to personal deterrence and retribution in synthesising the overall sentence, consistent with the approach confirmed in Attorney General's Application No. 1.
  • COVID-19 conditions in custody, including restrictions on family visits and heightened anxiety about infection, were treated as relevant hardship factors to be synthesised into the overall sentencing exercise, though they did not override the requirement for a sentence reflecting the objective gravity of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(2), 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(2)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 276
- Criminal Procedure Act 1986 (NSW) (Form 1 provisions)

Cases:
- R v Herring (1956) 73 WN (NSW) 203
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Attorney General's Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146