STATE OF TASMANIA v JOSHUA JOHN PEARCE 17 SEPTEMBER 2021
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, Joshua John Pearce has pleaded guilty to one count of aggravated burglary, one count of aggravated assault and one count of recklessly discharging a firearm.
I have also agreed to deal with a number of related summary offences pursuant to s 385A of the Criminal Code. They are on Complaint 31395/2021, possessing a firearm when not the holder of a firearm licence, carrying a firearm with intent to commit a crime and possessing a loaded firearm in a public place when not the holder of a firearms licence. I have accepted pleas of guilty through counsel in respect of those matters.
The complainant is Benjamin Smith. At the time he had known the defendant for approximately 6 years.
The crimes occurred at a unit in Invermay which is the complainant’s residence. The complainant’s uncle, resided in the adjoining unit and on the evening of 1 April 2021, he had his 5 year old daughter staying with him.
At approximately 10.30p.m. on that evening, the complainant received a message on Facebook Messenger apparently from a woman he knew, asking the complainant to come and see her at a Waverley address, but it was eventually agreed she would come to the complainant’s home.
Approximately an hour later the complainant answered a knock at the door. As he opened the door a barrel of a firearm was put through by the defendant who said “you’re fucked I am going to kill you, ya dog”. The complainant managed to grab hold of the barrel of the firearm but the defendant forced his way into the unit and a struggle commenced in the entryway.
During the struggle the defendant said “you’re dead I’m going to kill you, you cunt”. The defendant attempted to point the firearm at the complainant while having his finger on the trigger. The struggle continued during which time the firearm discharged sending a bullet through an adjoining wall with the unit occupied by the complainant’s uncle and his daughter. The bullet travelled through the kitchen wall to the other side of the kitchen above the stove. Fortunately the complainant’s uncle and his daughter were asleep in another room at the time of the shot.
During the struggle the complainant was struck a number of times to the top of the head with the butt of a firearm. As a result, the firearm which the complainant described as a shortened single barrel rifle, fell apart. As this was happening the defendant continued to threaten the complainant and also told him “stay the fuck away from Chrissie”.
The complainant suffered grazes and bruising to his head and body as well as a fractured left hand ring finger.
Later in the morning the complainant received a number of text messages from the defendant continuing to threaten him.
On 5 April 2021, the defendant was arrested.
I have heard a victim impact statement from the complainant. Since this happened he has been very anxious. He has always had mental health problems but this has made it all much worse. He is contemplating moving as he does not feel safe. He remembers thinking at the time that he could have been killed. He lost time off work as a result of the injury to his finger.
The defendant has been in custody on this matter since his arrest on 5 April 2021, however that time in custody has been “used”, as it were, because the defendant is currently serving a sentence backdated to that date including an activated suspended sentence.
The defendant is a single man with no dependents. Prior to being remanded in custody he was living in a stable, private rental. He was raised by his mother and step-father. He had a difficult childhood and he has only recently reconnected with his mother. He spent a significant amount of time with his paternal grandparents as a child, both of whom have now passed away. He completed Grade 10 at Scottsdale High School and since leaving school has held long periods of employment in the fishing industry and at a Scottsdale sawmill. He has an acquired brain injury and as a result suffers depression and anxiety and in a prison environment has been unable to access his usual medications.
The defendant has a very long record of prior convictions including relevantly for possession of ammunition and the possession of a shortened firearm and the possession of a firearm without the appropriate licence. Other offending has been for dishonesty and drug related offences. The defendant is however, to his credit addressing his continued offending and is undertaking a resilience course.
These are very serious crimes. The complainant could have been killed or injured by the discharge of the illegally shortened firearm during the course of the struggle and the complainant’s uncle and niece could have been killed or injured when the firearm was discharged through the wall. Apart from a relatively late plea of guilty there are no mitigating circumstances. The defendant has pleaded guilty however and is nonetheless still entitled to a genuine discount on an otherwise appropriate sentence for having done so.
The defendant is convicted on all counts and of the summary offences to which he has pleaded guilty. I impose a single sentence of three years imprisonment to commence at the expiration of any sentence or sentences currently being served by the defendant. In the circumstances I make the maximum allowance for parole. The defendant is not to be eligible for parole until he has served half of the three year sentence just imposed.