STATE OF TASMANIA v CHRISTIAN NEIL SHEARING 18 NOVEMBER 2024
COMMENTS ON PASSING SENTENCE MARSHALL AJ
Mr Shearing is before the Court today having pleaded guilty to firearms offending and charges of strangulation. Mr Shearing has pleaded guilty to a charge under s 11(1) of the Firearms Act 1996. The particulars of that charge are that on 30 October 2023 and 31 October 2023 Mr Shearing dealt in firearms by purchasing a firearm from another person and then offering the firearm for sale to various associates of his when he was not the holder of a firearms licence. The Court granted an application for related summary charges on complaint number 11730/2023 to be dealt with pursuant to s 385A of the Criminal Code. Those charges include:
- Posses an unregistered firearm (being a single barrel 12-gauge slam shotgun);
- Possess a firearm when not the holder of a firearms licence;
- Posses an unsafe firearm given that the 12 gauge shotgun had no safety mechanism;
- Fail to take all precautions to ensure safekeeping of firearm;
- Possess ammunition when not the holder of the appropriate firearm licence;
- Fail to take all precautions to ensure safekeeping of ammunition.
Police discovered the 12-gauge shotgun when they attended Mr Shearing’s residence on 31 October 2023 in response to a report about family violence offending at the premises. The gun was unregistered, unsafe and Mr Shearing did not have a firearms licence to posses it. When police went through Mr Shearing’s phone messages they discovered that he had on sold a firearm he had purchased.
In addition to sentencing Mr Shearing for this current offending, the State has requested that the Court activate a suspended sentence previously imposed on Mr Shearing. Further Mr Shearing is before the Court where he pleaded guilty to two cases of strangulation under s 170B of the Criminal Code. The particulars of that offending are that on two occasions on 20 November 2023, Mr Shearing placed his hands on the neck of a female partner and squeezed her neck. There was also a related summary charge of common assault contrary s35(1) of the Police Offences Act 1935. The particulars are that on 20 November 2023, Mr Shearing punched his partner to the jaw and pushed her. This matter is before the Court pursuant to a further application under s 385A of the Criminal Code.
The facts relevant to the events of 20 November 2023 pertinent to the offending in relation to strangulation are as follows. At about 4.20pm on 20 November 2023, the complainant and Mr Shearing had an argument. During the course of the argument, he punched her to the jaw with a clenched fist. About one or two hours later the complainant went into the kitchen, he followed her. He grabbed her to the neck with two hands and squeezed her tightly for 15 to 20 seconds. The complainant struggled to breath, grasping for air and fell to her knees. Mr Shearing then moved away from the complainant and as she stood up, he moved back and grabbed her by the neck with two hands, again causing her to struggle to breathe. Mr Shearing pushed her and punched her to the jaw and right leg with a closed fist.
On 28 November 2022, Justice Jago sentenced Mr Shearing for three counts of assault under s 184 of the Criminal Code. He was sentenced to a period of 15 months imprisonment backdated to 20 November 2023. The balance of that period of imprisonment was suspended for three years on the condition that he not commit an offence punishable by imprisonment. Mr Shearing has now been held in custody in respect to the current charges since 20 November 2023.
In the context of the strangulation offending, the activation of the suspended sentence arising from Justice Jago’s sentence was not opposed by counsel for Mr Shearing. The duration of the suspended sentence requiring activation is 15 months minus six days. I am told that if that sentence was activated today in the absence of any other offending, Mr Shearing would remain in custody serving that sentence until 11 February 2025.
Mr Shearing is 33 years old. He has a substantial criminal history. He has three prior convictions for common assault albeit not involving family violence. He also has previous convictions for assault under s 185A of the Criminal Code. He has no prior convictions for firearms offences. Mr Shearing experienced cumulative childhood traumas and he experienced further trauma in adulthood. Illicit drug use, alcohol and prescribed medication had diminished his capacity to stabilise his emotions and control his anger. He is keen to receive assistance to improve his mental health and his ability to deal with situations requiring anger management. He is remorseful for his offending and his guilty plea must be taken into account in any sentencing.
However, the strangulation offending is extremely serious. It is fortunate that the complainant was not killed. Mr Shearing has a recent prior offence for assault under s 184 of the Criminal Code which involved strangulation. This offending occurred in January 2021 prior to s 170B of the Criminal Code coming to into effect.
The offending the subject of the current strangulation charges occurred less than three years later. General deterrence, specific deterrence, just punishment, condemnation of the offending and vindication of the complainant, combined with Mr Shearing’s recent offending, compel the imposition of a significant term of actual imprisonment.
Mr Shearing, I convict you of all offences outlined in these sentencing comments.
I activate the suspended sentence imposed by her Honour, Justice Jago on 28 November 2022. That sentence will expire on 11 February 2025.
In respect of this activation, I have decided that parole should not be granted. I do so having regard to the comments of Justice Jago at the conclusion of her comments on passing sentence where her Honour said “Mr Shearing you must clearly understand that if you are foolish enough to reoffend and breach the terms of the suspended imprisonment I have imposed on you if you fail to satisfactory complete the terms the community correction order I have imposed including the completing the family violence intervention program, then in my view a of period of actual imprisonment is all but inevitable”.
In all the circumstances of the offending under s 170B of the Criminal Code, I sentence Mr Shearing to a term of imprisonment for two years for the strangulation offences, to commence on 11 February 2025, having regard to the earlier comments regarding activation of the suspended sentence. I deduct 363 days from that two-year sentence to account for time already served in custody.
The offence under s 35(1) of the Police Offences Act 1935 will be a term of imprisonment of three months to be served concurrently with the sentence of imprisonment imposed for the offending under s 170B of the Criminal Code.
On the firearms charges, I globally sentence Mr Shearing to a term of imprisonment of two months. That sentence is also to be served concurrently with the sentence of imprisonment imposed for the offending under s 170B of the Criminal Code.
The result of today’s sentence is that Mr Shearing will serve the activated suspended sentence until 11 February 2025, at which point he will begin serving the two years’ imprisonment for the strangulation offending, which has been reduced by 363 days due to backdating. This sentence will, therefore, expire on about 13 February 2026. The two month sentence imposed for the firearms offending and the three month sentence imposed for the common assault will operate concurrently with the two year sentence, beginning 11 February 2025.
Pursuant to s 13A of the Family Violence Act I direct that the crimes dealt with in these comments on passing sentence, other than the firearms related charges, be recorded on Mr Shearing’s criminal record as family violence offences.