STATE OF TASMANIA v ANDREW JOHN SLESSAR 26 OCTOBER 2022
COMMENTS ON PASSING SENTENCE GEASON J
Mr Slessar you have pleaded guilty on an indictment to a count of aggravated assault and also to a number of summary matters which I am dealing with pursuant to s 385A of the Criminal Code.
The relevant facts are that a Ms Hickingbotham, was caring for a person by the name of Samuel Strong, who had been behaving in a way which created particular difficulty for her, He was violent towards her on 16 May 2022, when he assaulted her by strangling her at her property in Lonnavale. On that evening upon Samuel Strong falling asleep, Ms Hickingbotham left the property with her ten year old child in the early hours of the morning. Mr Strong made several attempts to contact her, including by telephone. He threatened to burn her house down and told her that he had damaged a vehicle that she had left at the property. Ms Hickingbotham contacted a friend, your fiancé, and asked her to attend the property and check her animals. She did this with you. You observed her vehicle to be damaged, the windscreen having been broken and the rear tyres destroyed. Samuel Strong was not present at the time. After a further discussion with you and your fiancé and Ms Hickingbotham, it was determined that you would remain at the property overnight to prevent Samuel from further damaging her property.
On 17 May 2022 about 8.50pm, Samuel Strong, and his brother Thomas Strong, came to the property. Samuel Strong approached the house and picked up a house brick. You positioned yourself at the top of the stairs on the verandah. You were about three to six meters from him. You held a rifle across your body with the barrel of the gun pointing towards the ground, and said “I am going to shoot you, you have five seconds to leave”.
You lifted the rifle up and you fired over the complainant’s heads. Samuel took evasive action and fled to a nearby shed, whilst Thomas returned to his vehicle. Shortly after they left the property and called police. At about 10.30pm police attended locating you standing outside the house on the front porch. You were the only person present. A number of items were located in the bedroom at the property including the following:
One .303 bolt action rifle with a magazine attached containing six rounds with one round in the chamber. That rifle is the subject of count one on the complaint. They also located a .22 bolt action rifle with a scope attached. That weapon is the subject of count 2 on the complaint.
Police also located:
- 4 rifle bolts
- 12 firearm clips
- 1 firearm magazine
- 25 Winchester .22 hollow point rounds
- 3 blank rounds
- 51 .22 rounds
- 5 .23 rounds
- 3 unidentifiable rounds
- 1 tin containing black gunpowder.
You were observed by police to be intoxicated. You were arrested and searched. A spent .303 round was found in your jacket. You directed police to a second spent round in the arm of the couch.
You were transported to Hobart and you were detained.
At the time of this offending you did not hold a firearms licence, and a police check confirmed that neither of the firearms they located was registered.
You participated in a record of interview on 18 May 2022. Under caution you said, relevantly, that you were asked to stay at the address to care for the animals and make sure that Samuel Strong did not smash anything up; that you had arrived there between 3pm and 4pm; that you knew neither complainant, that you had the firearms for your own protection; that the ammunition found at the house was yours; that the firearms were unregistered and you did not have a firearms licence; that the complainant’s had arrived at the house at about 6pm and Samuel had said that he wanted to come into the house and get stuff; that they came back again around 9pm, and Samuel grabbed a brick as he came through the front gate and said he was coming in and threatened you with the brick. That you stood at the front of the verandah at the top of the step and fired the .303 round into the air when Samuel was a few meters away from you; that you had scared him; that the shot had also scared Thomas and both men left; that you had been drinking cider since earlier in the day and had had about ten stubbies; that you intended to scare the boys by firing the weapons; that you saw police come into the house and threw the firearms in the bedroom; that you regularly hunt with the .303 and knew the sort of damage that it could do to a human and that discharged rounds were yours and that you had discharged a round that night.
You denied pointing the weapon in the direction of either complainant.
In mitigation it is put to me that you had been taken to the property early in the afternoon by your fiancé. You lit a fire and made yourself comfortable, and consumed a couple of bottles of cider, before looking around and finding a number of weapons that had been secreted around the property. These consisted of knives, axes, metal bars, a large machete, and a rabbit trap. You collected these and put them somewhere safe so that the complainant’s would be unable to find them if they returned. Later that day you received a call from Ms Hickingbotham advising that she had not been able to have police attend her property because she had been told they were busy elsewhere. You were asked if you would stay at the house overnight to protect it. Ms Hickingbotham advised you that you should be careful, because Thomas Strong had access to a shotgun. You wanted to do the right thing even though you did not know Ms Hickinbotham but because she was a friend of your fiancé. When the complainant’s arrived you stood your ground, initially without any weapon. You said you had identified at least five people at that point, all in the complainant’s vehicle. After they left you went back to Dover and collected your firearms and you returned to the house to stand guard. The complainant’s returned at about 8.50pm, when it was dark, and parked in front of the house. Their motor vehicle was hidden behind some bushes. You were not able to see how many people were in that vehicle. Thomas and Samuel Strong alighted from the vehicle and came to the front of the house heading towards the verandah where you were standing. You were threatened with the brick by Samuel Strong. You were holding the .303 rifle. You had a spotlight, which you shone on the complainant’s and on the firearm you were holding to indicate that you had it in your possession. You had apparently assumed that there were other men in the vehicle based upon the earlier episode that evening. Because the complainant’s had not been deterred by your previous comments and had come back and because of the earlier threat made by Samuel Strong to burn down Ms Hickingbotham’s house, you decided you would raise the firearm, which you did, elevating it above them, and out of range and you discharged it. I am told that you aimed it in such a way as to avoid any prospect of injuring them. I accept that submission.
It is put to me you did not go to the property to act as a sort of vigilante, but merely to protect it. You accept that the use of the firearm was disproportionate to the force that you were likely to receive, and it is on that basis you have entered your plea of guilty.
I also accept that you indicated at a very early stage that you would plead guilty to these matters. As such a significant utilitarian benefit accrues to the State which has avoided the cost to preparing and running a trial.
I am further told, and accept, that there was no benefit to you in going back to the property to look after it and that you were giving up personal time to do so. You were also putting yourself at risk of finding yourself in trouble, which risk eventuated.
I accept that there is no evidence, apart from momentary fear at least, that the complainant’s suffered in any way in consequence of your actions. I further note, that the complainant’s were given every opportunity to leave the property before the firearm was discharged.
You have a significant record of prior convictions in a number of Australian states, but similar charges are not duplicated. There is an assault in 2021, a relevantly minor matter it would seem, because you were discharged on an undertaking to be of good behaviour. You failed to honour that undertaking by committing these offences.
You are not of course, to be punished for your prior convictions but they reflect on your character and deprive you of the opportunity to submit to the Court that you are otherwise a person of good character. In respect of the summary matters, the firearm offences, they are serious, and they require separate punishment. An important sentencing consideration, is that of general deterrence. Firearm offences are serious and carry with them significant risk to the community. You have chosen to ignore your legal obligations in respect of the possession of firearms, and apart from forfeiting them, that conduct requires punishment.
You were 46 years old at the time of the offending and living at Dover. You receive a disability support pension of $1,030.00 per fortnight, from which you pay rent and you are repaying a fine, in respect of which $160 is outstanding. The balance of your income is spent on food, cigarettes a few drinks, and pet food. You have no savings.
In relation to personal deterrence, I consider that the curial process will have had a significant impact upon you, but there is exhibited in your record a propensity to offend, and in my view it is necessary to deter you from such conduct in the future.
I note that the complaints have not made victim impact statements. It has to be said that the events of this evening were significantly contributed to by their aggressive and lawless behaviour. That of course does not entitle you to act as you did.
On the indictable matter, a serious charge, I intend to impose a term of imprisonment. In my view such sentence properly marks the seriousness of your behaviour, the risks associated with it and the need to deter you and others from offending in this way. For that offence I sentence you to three months’ imprisonment. That sentence reflects a 20% discount which I grant in respect of the utilitarian benefit which has accrued from your plea of guilty.
In all of the circumstances of the case, and having regard to the matters put in mitigation, which are relevant to the question of whether a sentence of imprisonment should be suspended, I have determined that it is appropriate to suspend the whole of that sentence on condition that you are of good behaviour for a period of two years. If you offend in that period, you may be required to serve that sentence. That sentence in my view properly marks the seriousness of your behaviour, and serves as a general and personal deterrent.
In relation to the firearms offences, and noting your means, and because you are now subject to a term of imprisonment, I intend to deal with them by imposing fines upon you. Those fines are determined by reference to your financial circumstances, but also the seriousness of the offending and the need to deter others from offending such as this. I also have regard to the principal of totality. In respect of those matters I sentence you on complaint to a fine of $2,500.
The effect of that Mr Slessar, is that you have a sentence of three months of imprisonment hanging over you. If you are of good behaviour for a period of two years, you will not have to serve that sentence but if you are not you may well have to serve that period of imprisonment. You also have the fine which is required to be paid.