STATE OF TASMANIA v JARROD MARK LEIGH SMITH 20 DECEMBER 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
Jarrod Smith, the defendant, has pleaded guilty to charges of aggravated assault, perverting justice and possessing a prohibited firearm when not a holder of a licence. These crimes were committed during one incident in the early hours of the morning of 7 November 2022. There is a co-accused in the matter, SW, who was a youth and is yet to be dealt with. The charges arise out of behaviour directed towards a young female, AN, who had been in a relationship with SW for about three years. That relationship ended in early October 2022. After the relationship ended, SW had called and messaged the young woman, threatening to kill her new partner. He sent her video messages that include photographs of firearms. Shortly before the incident he sent a video of a firearm and said that he had swapped his shotgun for this new gun. On the evening of 7 November 2022, the defendant, SW, and two other men were drinking at a house and became intoxicated. Two young women picked up the defendant, SW and another male, JB, in a vehicle and they drove around for a time during which SW rang and messaged AN. That led to an argument over the phone. The defendant became involved in this and at one point was arguing on the phone with AN. Apparently she became upset when she discovered that SW was in a car with other females, and told him to take them to her place so she could bash them. During a further phone call AN said she did not want to resume the relationship with SW. He said that he would go to her house to see her. The group returned to the house they had previously been in where SW retrieved a .22 rifle, wrapped it in a balaclava gave it to the defendant who in turn, put it in his backpack and placed it at his feet in the car where he had remained. That firearm had a barrel shortened to less than 30 centimetres. The group then made its way to AN’s home, with the other male driving. When they got to the street in which AN lived he slowed the vehicle to a walking pace. When the vehicle was outside the actual residence, the defendant passed the firearm to SW who loaded it, wound down the rear drivers side window and fired the weapon from inside the car at AN’s house. The bullet hit the area of the kitchen window. It is asserted that both the defendant and SW laughed at that point and the vehicle was then driven away at speed. In the few minutes before the incident SW told AN he was coming. She said she heard a knock on the window of her room and looked out, and then went out of the front door but apparently saw nothing and went back inside. It was about two or three minutes later that she heard the discharge of the firearm. She saw that the top part of the kitchen window had been broken, called SW and accused him of shooting at the house but he denied it. She stated that it sounded like he was holding back laughter as he was asking for proof that he had done it. Police responded to multiple calls regarding the discharge of a firearm in the area. On the afternoon of 8 November both accused went to the Bridgewater Police Station having been encouraged to do so by family and friends. The defendant made a statutory declaration to police denying his involvement in the shooting. In particular, he said that at no point had SW mentioned anything about shooting any gun at AN’s house. He denied that they had any guns with them. The State’s case is that at the time of making this statement he knew it to be false, and it was done with the intention preventing both him and SW from getting into trouble. On 2 January 2023, the defendant was interviewed. He made admissions about the general activities of the group and possession of the firearm. He said when he took possession of it it was not loaded but he was aware there was a loose bullet in the bag. He said that SW had asked him to shoot at the house but he refused. He did however, agree that when they got to the house he handed the firearm to SW along with the bullet. Additionally, he said that he gave police a “bullshit” story so SW would not get into trouble and said that he had received threats from SW’s father to the effect that if SW did get into trouble he would smash the defendant with a block buster. The defendant said he thought that SW was only trying to scare the occupants but he acknowledged the possible fatal risk of firing a gun into a house. He did not know why he did not try to stop him. I note that the defendant was in custody for a time after initially being released on bail and has had further periods in custody to date, the last time he was released on bail was 28 November 2022. The total time spent in custody on these matters is 159 days.
Before this incident, the defendant had no recorded history of offending. However, since this incident he has not been of good behaviour. On 21 August 2023 he was dealt with for a range of offences, the global penalty for which was a community correction order commencing on that day with a condition of 100 hours’ community service. The offending included an assault by producing a knife, a number of offences of dishonesty including stealing a motor vehicle, driving offences and numerous breaches of bail conditions. On 25 October 2023 on several further bail transgressions he was fined to the sum of $500. As to the defendant’s other relevant personal circumstances I have the benefit of counsel’s submissions and a pre-sentence report dated 8 June 2023 which was prepared for a magistrate. The defendant’s parents separated when he was young but during school he seems to have been well behaved and respectful. Afterwards however, he became involved with pro-criminal elements and started using drugs. He had been friends with SW for some time and seems to have been with those who were a bad influence on him and was using drugs on the particular night. Accordingly, it seems to be a combination of his immaturity, his friendship with SW and the influence of those others that are at the heart of this offending. The essence of the submission made on the defendant’s behalf is that notwithstanding the later offending, the defendant has now made significant progress in rehabilitating himself, and in that respect, has a good support network. His parents have come together to support him. He presently lives with his father who has spoken to him about the ill-effects of drug use. He has a girlfriend who is also intolerant of his criminal behaviour. There is also his association with the Claremont Football Club, a leading amateur football club in the South. The defendant is a talented footballer, having represented the State as a junior. He was supported by club management during his time on bail with stringent conditions. In particular, this involved arranging transport for him. His involvement in the Club is positive in terms of his behaviour. He is keen to make the most of this opportunity having started pre-season training and doing gym work with his girlfriend. More broadly, he accepts that this incident and his subsequent offending were influenced by his associates and his use of drugs. He has now cut himself off from those associates. He now recognises he is vulnerable at making poor decisions when he is with them. He accepts that his acts were stupid dangerous and traumatic for the complainant. They were on friendly terms before this incident and remain so, and he has expressed his remorse to her. He does not seek to downplay his role in what happened, and accepts that he was a willing participant and supported and encouraged SW. I would also note that he is prone to epileptic seizures. The first of these occurred in November 2020 and at about the time he left school. This was a very significant event in his life. He has to be medicated and monitored, and the management of this condition while in custody was said to be less than ideal. He has not used drugs of any description for some time, and is putting himself in a position in which he can obtain employment of which there are some potential.
The assault in this case is the threat constituted by the discharge of the firearm towards the house, in this case with knowledge that the complainant was inside. It is an aggravated assault because of s 115 of the Firearms Act 1996, and because in this case, the person carrying out the assault used a firearm. The defendant’s criminal responsibility for that crime is by way of aiding and abetting. I have to say that all forms of violence are unacceptable. In this case the use of a firearm made it especially so. The discharge of the firearm was not merely reckless, there was an intentional threat constituted by the act. The intention was to shoot at the house. The defendant was closely involved in all that happened, and it is a particular concern that the defendant, albeit for a short period, possessed a shortened and prohibited firearm and a round for that firearm, and then provided them both to SW. The unlawful possession and use of a firearm in such a situation is a grave matter. When firearms are used and discharged in the street towards homes in a residential area, not only do they cause actual danger to all in the vicinity, including members of the general public, but they serve to create an atmosphere of fear and intimidation and lawlessness. I stress that this sort of conduct is completely unacceptable. Perverting justice in this way undermines the proper administration of the law and wastes valuable police resources. On the other side of things I take into account that the defendant’s circumstances at the time, and what are said to now be his personal circumstances. I am prepared to accept that he has insight into his offending, that he is apologetic and remorseful. I am so prepared to accept that he has cut himself adrift from his former associates and is no longer prone to illicit drug use. He has family and relationships support as well as the support of the football club. I take into account his pleas of guilty which at the least, have practical value although they were not early pleas in the strict sense. The law is that the primary considerations to be given to rehabilitation in the case of young offenders must yield, in certain cases to considerations of punishment and condemnation of the conduct where it is very serious. This case might be seen as at the boundary line but I am prepared to focus on rehabilitation.
Mr Smith, I have set out the facts your personal circumstances and what I see to be the relevant considerations to be taken into account. This was truly a dangerous and very stupid thing for you to be involved in. I think you now understand the risks involved and just how unacceptable this sort of behaviour is. I accept that you may have felt under pressure to tell lies to the police about what had happened. The conduct warrants imprisonment but I am prepared to take into account the period you have spent in prison and not to impose any more immediate time in gaol. I note that you are still subject to an order requiring performance of community service. Your are convicted of all matters and by way of a global penalty, sentenced to 15 months’ imprisonment to commence on 14 July 2023, the balance from today is suspended on condition you commit no offence punishable by imprisonment for a period of two years. I need to provide you with both an explanation and a warning. The condition of suspension means what it says. If you commit any offence punishable by imprisonment you can be brought back to this Court on an application to activate the sentence, and a judge must do that unless it is unjust. The warning is that there are many offences punishable by imprisonment. They include for instance possession of cannabis and the more serious driving offences.