STATE OF TASMANIA v JAKE JAMES SMITH 25 JUNE 2024
COMMENTS ON PASSING SENTENCE MARTIN AJ
Mr Smith, you have been found guilty by a jury of Recklessly Discharging a Firearm without due regard to the safety of people and property. The incident occurred on about 8 April 2022, although the precise date is not clear. The incident was not reported to police, but it was recorded on a mobile telephone. You or someone sent the recording to your former partner who provided it to another person who in turn sent it to police.
The footage is in one sense quite graphic as to your state and condition, a state and condition which you later explained to the police that you were “off your face” with alcohol and another or other drugs. Plainly from the footage you were heavily intoxicated. The footage shows you manhandling a sawn-off .22 rifle. You pointed it at the camera and you were drunkenly mouthing off, apparently to people who had previously engaged in a home invasion of your premises. In addition, a shot had been fired into your premises. It appears you wanted to impress upon whoever had engaged in the home invasion and fired the shot that if they came into your suburb they could expect to be met with violence in the form of you wielding and using the rifle.
While you were uttering these threats, and using what might be described as graphic language, you pointed the rifle in the air and discharged it. You did not point it directly up into the air, rather it was on an angle, but nevertheless, an upward angle. At that time you were in a suburban area and I accept the evidence of the ballistics expert that firing a shortened weapon of that nature, and assuming the use of a cartridge with the shortest distance, the projectile would have travelled at least 200 to 300 metres.
The danger to other people and property is obvious. Apparently no harm was caused by the projectile. There was no report to police and there is nothing in the evidence to suggest that anybody was harmed, but the risk is obvious. In addition, the use of weapons in the community for the commission of crimes or just to let off shots is a matter of great concern to our community and the use of weapons is far too common. It is important that people who are minded to use weapons in any way within our community should understand that if they let off shots which create this sort of risk to the community they can expect to be imprisoned. In your particular situation, your conduct was even more dangerous because you were grossly intoxicated.
I accept that you have no memory of the particular occasion or of letting off the shot. I also accept that you are ashamed of your conduct that night and of the fact that you allowed yourself to get into such a condition that you have no memory of what occurred.
As to matters personal to you, at this time you are aged 33. Unfortunately, over the years, since 2005, you have amassed a significant record of prior offending. It obviously started when you were a teenager and there are many offences of dishonesty, including an armed robbery in 2008 for which you received probation. There are a number of offences of destroying property, two crimes of wounding and offences against good social order. Over the years you have breached bail and suspended sentences. You have also breached family violence orders.
In recent times you have experienced significant distress and difficulties in your life. I mentioned the home invasion and the firing of the shot through the window of the house in which you were residing. You also suffered the trauma and distress of losing a son at the age of 14 weeks. You went to Queensland for a couple of months, but then returned to Tasmania. You undertook some drug and alcohol counselling and obtained employment at an oyster farm. In breach of your bail you did not appear in court when you were required and, because your mother was ill, you went to Queensland again where you spent 18 months during 2021-2022. You worked on a farm. You managed to get yourself off drugs. Eventually you came back to Tasmania because you had met your current partner who lived in Tasmania, and your brother had been seriously injured in a road accident and it appeared that he was not likely to survive. Some months later you were arrested on the warrant for your non-appearance.
I accept that prior to your arrest you had, to a significant degree, turned your life around. You had remained clear of drugs and you had established a good relationship with your partner. In this time you had passed tests with an employer provided related to alcohol and other matters. With a good Queensland reference you were hoping to obtain employment, but all of that came to a halt when you were arrested on the warrant. Importantly, you have cut ties with your previous associates and you were attempting to provide a good example for the child of your partner who resides with the pair of you.
Mr Smith, you pose a problem with which this Court commonly is required to grapple with. You have a bad record. You committed a serious and dangerous offence, but through your own efforts you have managed to make significant steps towards your own rehabilitation. In the sentencing process, however, I need to bear in mind particularly the seriousness of your offending and the need to deter others as well as deterring you.
I have been asked to deal with a breach of a family violence order – count 1 on complaint 3364/2022; you breached the order within a couple of days of it expiring by being in possession of the firearm that you discharged in committing the offence with which I am concerned. Through your counsel you have acknowledged your guilt of that breach, but in the circumstances I make no order with respect to that breach.
Balancing as best I can the competing interests and requirements of a sentencing process, I have decided that the appropriate sentence is imprisonment for 12 months, commencing on 22 May 2024, but I will suspend that sentence after you have served 3 months of the sentence. In doing so I have paid particular regard to your own efforts of rehabilitation and to the fact that if you are able to successfully continue with that process it will be the benefit of the community at large. It is a condition of the sentence that you not commit any offence punishable by imprisonment in the 2 years of the operation of the suspension – that is, operable 2 years from the date of your release. During that period you are to be under the supervision of a probation officer and you are to obey all reasonable directions of the probation officer including directions as to your residence, your employment, your associates and undertaking any counselling or treatment, particularly with reference to the use of alcohol and drugs and issues of anger management.
It should also be a condition that unless advised to the contrary by a Correctional Services Officer, prior to your release, you should report within 48 hours of your release to an office of Community Corrections.