R v Sproates [2008] NSWDC 301

New South Wales District Court

CITATION: R v Sproates [2008] NSWDC 301

HEARING DATE(S): 19 March 2008 3 April 2008

JUDGMENT DATE: 3 April 2008

EX TEMPORE JUDGMENT DATE : 3 April 2008

JURISDICTION: Criminal

JUDGMENT OF: Conlon SC DCJ at 1

DECISION: CONVICTED. Sentenced to a non-parole period of 8 years to date from 3 July 2006 and expire 2 July 2014. Additional term of 4 years to expire on2 July 2018.

CATCHWORDS: Maliciously inflict grevious bodily harm with intent - Aggravating features and element of charge - Aggravating features and prejudice - Standard non-parole period - Intoxication and drugs - Onerous custodial conditions - Aboriginality of offender

Crimes (Sentencing Procedure) Act 1999 (NSW) LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)

R v Way (2004) 60 NSWLR 168 R v White (unrep 23 June 1998 NSWCCA) CASES CITED: R v Durocher-Yvon (2003) NSWCCA 299 R v Andrews [2007] NSWCCA 68 R v Fernando (1992) 76 A Crim R 58 R v Ceissman (2001) 191 A Crim R 535

PARTIES: Regina Brendan Christopher Sproates

FILE NUMBER(S): 2007/00009350

COUNSEL: Ms. B. O'Reilly (Accused)

SOLICITORS: Mr. A. Kernaghan (Crown)

JUDGMENT

1 HIS HONOUR: The offender, Brendan Christopher Sproates, appears for sentence following his plea of guilty to a charge that on 2 July 2006 at Unanderra in the State of New South Wales he maliciously inflicted grievous bodily harm to Shane Staff with the intent to do grievous bodily harm. This offence is contrary to s 33 of the Crimes Act and carries a maximum penalty of twenty-five years imprisonment. The agreed statement of facts is contained in exhibit A and is as follows. On the evening of Saturday 1 July 2006 the victim, Shane Michael Staff attended the Wests Leagues, Central Road, Unanderra and he attended there alone. About 7.31pm on the same evening the offender, Brendan Sproates, attended the club in the company of his sisters, Terri Lee Sproates and Melissa Sproates to celebrate his forthcoming birthday. At about 3.08am, that is in the early hours of the next day there was a physical altercation between two other male patrons within an area of the Wests Leagues Club. The altercation was diffused by security personnel. The offender was nearby when that altercation took place but was not directly involved. The offender became agitated and remonstrated with security personnel at which time he was heard to say, "Blokes like you deserve a bullet in the head", and, "They were being racist, I'm going to put a bullet in your head". These comments were made towards one of the males involved in the altercation. The victim, Shane Staff, was also in the area at the time of the altercation but was not involved. The offender was directed by security personnel to leave the premises, he initially ignored the direction and returned to the company of a male friend. Security personnel escorted the offender and the friend from the premises. As the offender and his friend were being escorted through the foyer of the premises toward the front door, the offender continued to argue with and goad security personnel. As they walked past the entrance to the poker machine area Shane Staff approached the offender and said words to the effect of, "Fucking leave him alone, he's a mate leave him alone". This comment related to the offender arguing with security personnel. Shane Staff walked to the foyer of the premises, used a telephone and requested a taxi. The man, Staff, exited the premises via the front doors, walked across the driveway outside and sat down on a bench seat. As the offender was escorted through the foyer he received a call on his mobile phone, he was heard to say, "You're out the front, yeah, no worries I'm coming out now". Upon leaving the club the offender drew a black coloured pistol from the waistband of his pants and approached Staff who was still sitting on the bench seat. A verbal altercation took place between Sproates and Shane Staff and the offender pointed the pistol at him. The man Staff pushed the offender's hand that was holding the gun away from him. The offender and his friend walked off into the carpark to a maroon Mitsubishi Magna XHX 219 that was being driven by another male friend. Staff stood up and followed the offender. Staff waved his hands in the air and looked towards the security personnel at the front doors of the club. Staff then turned and walked towards the vehicle. Staff yelled words to the effect of, "If you're going to shoot me then shoot me". While saying this he had his hands outstretched from his body. The offender walked to that vehicle, XHX 219 turned and pointed the pistol towards Staff and fired at least one shot in Staff's direction. Staff yelled, "You fuckwit", and continued to walk towards the offender. The offender fired at least two further shots in the direction of Staff one of which struck Staff in the abdomen causing him to fall to the ground. The offender entered the front passenger seat of the vehicle which was being driven by the male friend. The vehicle was driven to 68 Kotara Crescent, Unanderra. After being dropped off by his friend the offender entered the residence at Kotara Crescent. The vehicle XHX 219 was stopped a short time later in Kotara Crescent due to the manner of its driving. The vehicle was identified as being used in the shooting and was subsequently searched. Upon searching the vehicle a .22 calibre bullet casing was located inside the vehicle. Staff was treated at the scene by ambulance then taken to Wollongong Hospital and admitted to the intensive care unit and underwent emergency surgery. He underwent several operations in an attempt to stop internal bleeding and remained in a critical condition. X-rays revealed a 5 millimetre foreign object within his body and a small entry wound to the upper abdomen. Medical evidence was sought from Dr Michael Talbot as to the angle of the bullet entry. He noted the bullet entered the left side of the victim's abdomen near the junction of the chest and abdomen and passed downwards to the right and posteriorly to lie in front of and to the right of spine (perhaps in the pancreas) having passed through the left side of the liver, the stomach and the pancreas on the way. The path of the bullet indicates the injury was not the result of a ricochet off the ground. The carpark of Wests Leagues Club was secured and examined by crime scene investigators. Two .22 calibre fired cartridge cases and two unfired .22 calibre cartridge cases were located within the carpark area. A possible projectile impact mark was located above the front door to the Wests Leagues Club. A search was made by investigators at the premises at 68 Kotara Crescent, Unanderra following a search warrant. During the search a box of .22 calibre unfired cartridge cases and clothing in a bag were located within a rubbish bin. Two broken mobile phones were also located within the same bin. On the afternoon of Monday 3 July 2006 the offender attended Moruya Police Station where he was arrested and cautioned and conveyed to the Batemans Bay Police Station. After speaking with a legal representative he agreed to participate in an electronically recorded interview.