Sproates v Regina [2009] NSWCCA 29

New South Wales Court of Criminal Appeal

CITATION: Sproates v Regina [2009] NSWCCA 29

HEARING DATE(S): 9/2/09

JUDGMENT DATE: 23 February 2009

JUDGMENT OF: Grove J at 1; Blanch J at 2; Kirby J at 3

DECISION: Leave to appeal granted, but the appeal dismissed.

CATCHWORDS: Criminal Law - appeal against sentence - malicious injury with intent (s 33) - relevance of drugs and alcohol to objective seriousness of offence.

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

R v Way (2004) 60 NSWLR 168 Anderson v Regina [2008] NSWCCA 211 CASES CITED : Mitchell & Gallagher [2007] NSWCCA 296 R v Coleman (1990) 47 A Crim R 306 R v Henry (1999) 46 NSWLR 346

PARTIES: Brendan Sproates (Appl) Regina (Resp/Crown)

FILE NUMBER(S): CCA 2007/9350

COUNSEL: T Game SC (Appl) N Norman (Resp/Crown)

SOLICITORS: S O'Connor - LAC (Appl) S Kavanagh - DPP (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/9350

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 3/4/08

IN THE COURT OF CRIMINAL APPEAL 2007/9350

GROVE J BLANCH J KIRBY J

Monday 23 February 2009 Brendan SPROATES v REGINA Judgment 1 GROVE J: I agree with Kirby J. 2 BLANCH J: I agree with Kirby J. 3 KIRBY J: Application is made by Brendan Sproates for leave to appeal against his sentence. Mr Sproates surrendered himself to the Moruya Police Station on 3 July 2006 and was arrested. He acknowledged his involvement in a shooting at the Wests Leagues Club, Unanderra, in the early hours of 2 July 2006, when a patron of the club, Shane Staff, received serious injuries. 4 Mr Sproates was charged with maliciously inflicting grievous bodily harm with intent to do grievous bodily harm (contrary to s 33 Crimes Act 1900) (maximum penalty: 25 years imprisonment with a standard non parole period of 7 years). He pleaded guilty. On 3 April 2008, Conlon DCJ sentenced Mr Sproates to imprisonment for 12 years, consisting of a non parole period of 8 years (3.7.06 to 2.7.14) and an additional term of 4 years (3.7.14 to 2.7.18). 5 Before setting out the grounds of appeal, I should describe the circumstances in which the offence was committed and the serious consequences for the victim. The incident. 6 A number of documents were tendered at the sentencing hearing, relevant to the way in which the incident occurred. There was an agreed statement of facts, as well as the record of interview conducted by the police with Mr Sproates the day after the incident. The account provided by Mr Sproates in that interview was incomplete and, in a number of respects, plainly wrong. The remarks of the sentencing Judge largely incorporated the statement of facts. 7 Both the victim and Mr Sproates attended the Wests Leagues Club on the evening of 1 July 2006. The victim was alone. Mr Sproates was with his two sisters, celebrating his birthday, which was the next day. He was about to turn 25 years old. Mr Staff was a few years older. They did not know each other. Shortly after 3.00am an incident occurred in which two male patrons began fighting. His Honour described what then took place, in these words: (ROS1/2) " ... 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. ... " 8 There followed the first interaction between Mr Sproates and the victim, Mr Staff. His Honour said this: (ROS 2) " ... 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. ... " 9 His Honour described what followed: (ROS 2) " ... 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 ... that was being driven by another male friend. ... " 10 The events culminating in the shooting were described in these words: (ROS 2/3) " ... 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, ... 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." 11 Mr Sproates was driven home by his friend. After he had been dropped off, the vehicle was stopped by the police, because of the manner in which it was being driven. The police had meanwhile identified the vehicle as having been involved in the shooting. It was therefore searched and a .22 calibre bullet casing was found. Later the police also located a further two .22 calibre cartridges at the carpark, as well as two unfired .22 calibre bullets. Mr Sproates, when interviewed, told the police that, on the journey home, he had thrown the weapon away, although he could not remember where (Q 309-310). 12 There were surveillance cameras at the club. His Honour described still photographs taken from the footage, and tendered in evidence, in these words: (ROS 4/5) "The last five photographs in exhibit B were taken via CCTV and they showed the offender leaving the club with an associate. The last of those photographs shows the offender outside the club with gun in hand, arm outstretched, obviously pointing it at the victim."