Beagley v R

Judgment

1. WHITE JA: I agree with R A Hulme J.
2. HARRISON J: I agree with R A Hulme J.
3. R A HULME J: Cory Dean Beagley (the applicant) seeks leave to appeal in respect of a sentence imposed by Jeffreys DCJ in the District Court at Albury on 25 May 2018.
4. The applicant pleaded guilty on 8 November 2017 to two offences on an indictment containing four counts. He pleaded guilty to firing a firearm with disregard to the safety of another person (Count 1) and to causing grievous bodily harm by an unlawful act (Count 4). These offences are contrary to s 93G(1)(c) and s 54 of the Crimes Act 1900 (NSW) and the applicable maximum penalties are imprisonment for 10 years and 2 years respectively.
5. In sentencing for the offence in Count 1, the judge took into account an offence listed on a Form 1 document at the applicant's request, namely using an unauthorised prohibited firearm. That is an offence contrary to s 7(1) of the Firearms Act 1996 (NSW) for which there is a maximum penalty of imprisonment for 14 years and a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) of 3 years.
6. In relation to the other two counts on the indictment, Count 2 was an offence of using a prohibited firearm [1] without being authorised to do so by licence or permit. It was withdrawn and became the offence placed on the Form 1. Count 3 was an offence of recklessly causing grievous bodily harm. There was a plea of not guilty and the Crown accepted the applicant's plea of guilty to the alternative offence in Count 4 in full satisfaction.
7. The judge imposed an aggregate sentence of imprisonment for 4 years with a non-parole period of 2 years, 3 months, specified to commence on 23 December 2017.
8. The sentences the judge otherwise would have imposed for the individual offences were 3 years, 3 months (Count 1, and taking into account the Form 1 offence) and 1 year, 3 months (Count 4).
9. The applicant seeks leave to appeal on the following grounds: 1. The sentencing judge failed to have proper regard to the principles relating to delay in sentencing when sentencing the applicant. 2. The sentencing judge erred in his Honour's application of the totality principle to the notional accumulation of sentence. 3. The sentence is manifestly excessive.

The offences

1. The applicant lived at Oaklands, a very small town about 100km north-west of Albury. About a week before Christmas in 2011, he came into possession of a .22 rifle which had a silencer. He was also in possession of suitable ammunition. He had been given the rifle by a work colleague to see if he could fix the firing pin. The applicant had been in the military and therefore had some experience in this regard.
2. On 28 December 2011, the applicant returned to his home in the early evening from a party where he had been drinking. He was intoxicated. He went to his backyard and discharged the .22 rifle. Fatefully, a woman was out walking about 100 metres away. She felt a pain to her neck and she started bleeding. She sought the assistance of residents and was taken to hospital by ambulance. It was established that she had suffered a penetrating gunshot wound to the neck with entry on one side and exit on the other. Surgery was not required. As at 8 November 2017, the date of the statement of agreed facts, she continued to suffer from some swelling under the chin and partial loss of movement of her tongue.
3. Police attended the applicant's home on 31 December 2011. They found the rifle fitted with the silencer in the roof cavity. A spent .22 calibre cartridge casing was found in the yard. There was another in a shed and a third in the adjoining block. They had all been fired by the rifle found in the roof. The applicant told the police that he placed the rifle in the roof cavity so that it was out of the way. He said that it was possible he had used the rifle on the evening of 28 December 2011, but he could not remember because he was intoxicated at the time.
4. There was a victim impact statement in which the victim explained that she had experienced psychological as well as physical harm. Even seven years after the event, she still suffered from low self-esteem, social withdrawal, and moodiness. Her permanently swollen tongue affected her eating habits and her speech. She had difficulty coming to terms with the physical scarring. She said that she had suffered significantly from internal damage and nerve damage affecting her mouth, tongue, speech and diet, not to mention her mental health, which she now has to deal with on a daily basis and will continue to experience for the rest of her life.
5. The applicant was charged with possession of an unauthorised prohibited firearm, possession of ammunition without holding a licence, permit or authority, and not keeping a firearm, namely a prohibited firearm, safely. He was sentenced in the Albury Local Court on 13 August 2012. For the first mentioned offence, he was sentenced to imprisonment for 9 months, execution of the sentence being suspended upon him entering into a good behaviour bond. Fines were imposed for the other offences. For some reason that is not apparent, the applicant was not charged with the present offences until he was served with summonses in about April-May 2014.

Personal circumstances of the applicant

1. The applicant was aged 31 at the time of the offending and 37 at the time of sentencing.
2. He had a prior criminal history that included multiple offences of damaging property as well as offences of affray, breaking and entering, resisting police, intimidating police, and contravening an apprehended domestic violence order, most of which were committed in 2008-2009. He had served terms of imprisonment, the longest being 14 months with a non-parole period of 4 months from 3 May 2008, and 12 months with a non-parole period of 4 months from 6 June 2010.
3. The applicant's subsequent criminal history, putting aside the sentences mentioned above (at [14]), was confined to offences relating to a dog on 6 March 2012, and contravention of an apprehended domestic violence order in 2017, for both of which the applicant was ordered to pay fines.
4. The Community Corrections officer responsible for a Pre-Sentence Report (PSR) wrote of the applicant's response to supervision under the suspended sentence bond he received on 13 August 2012. His case management had concentrated on his attendance at Alcohol and Other Drug services, psychological support, and finding employment. He was successful in attending counselling and finding full-time employment, and so supervision was terminated after about 3 months.
5. The applicant completed high school and then an apprenticeship as a boiler maker. He served a period of time in the Army from 2001 and was deployed to Palm Island. He was discharged in his mid-twenties. His subsequent employment was in rural industries, including as a mechanic, machinery operator, and truck driver. In recent years, he obtained a licence to drive heavy vehicles, and had been driving road trains. In 2017, he was driving long-distance routes. His mother deposed in an affidavit that he loved his job and he had told her, "[this] is exactly what I want to be doing". Regrettably, his employment was terminated after he pleaded guilty to the present charges. He returned to his previous employment on a crop farm.
6. The applicant was diagnosed with ADHD and Tourette's syndrome at around the age of 10. He reported experiencing suicidal ideation sometime in his mid-twenties following his discharge from the military and admitted himself to a psychiatric facility for a short time. He also reported experiencing problematic anxiety for the past five years (which would date from about 2012-3), for which he was taking medication.
7. At the time of sentencing, the applicant had been in a relationship with his current partner for three years. He also had the support of his mother and her husband. His relationship with his brothers was strained. His sister tragically died in a driving-related accident in 2009.
8. Alcohol had been a problem for the applicant for some time. In early 2018, he told a psychologist, Ms Lucie Swaffield¸ that he was drinking up to 12 standard drinks per occasion. He disclosed having used methylamphetamine in the form of "ice" and "speed" up to his mid-30s, but Ms Swaffield said his information was inconsistent. In the past, he said he had also used ecstasy and cocaine on a social basis from his early twenties.
9. Ms Swaffield considered that the dysfunctional behaviour evident in the applicant's background related to anger management and substance abuse. She considered that his risk of re-offending would be reduced if, among other things, he ceased alcohol and drug use, engaged in reviews of his medication, established pro-social friends, and engaged in a treatment plan to address his anxiety, anger, and interpersonal issues.
10. In relation to the offending, the applicant told the Community Corrections officer that he was heavily affected by alcohol at the time. He told the officer that he was willing to seek counselling because he sometimes drank excessively.
11. The applicant told the officer that he could not believe what he did or even remember firing the rifle due to his level of excessive alcohol consumption. He said he was thankful that the woman was not more seriously hurt. He said that he still thought about her regularly, even though the matter had been "hanging over me" with the result that he found it difficult to move on. He made similar expressions of remorse to Ms Swaffield.
12. The applicant's mother said in her affidavit that she recalled he was drinking more than previously in 2011, which she attributed to his grief over the loss of his sister in 2009.

Ground 1 - error in relation to delay and the principle of totality

1. To put the submissions in relation to this ground in context, it is useful to have regard to a chronology of relevant events: [2] 28.12.11 Date of index offences. 31.12.11 Search warrant - firearm and ammunition found. Charged with possession of same, and not keeping firearm safely. 13.8.12 Sentenced in the Local Court for offences of 31.12.11. Fines and 9 month s 12 bond imposed. 12.5.13 Section 12 bond expired. 21.5.14 First appearance in Local Court for present charges after summonses served. 15.9.14 Committed to the District Court for trial. 2.9.15 Trial listed but "not reached". 28.8.16 Trial listed but "not reached". 6.11.17 Pre-trial arguments commenced before Jeffreys DCJ. 8.11.17 New indictment presented; pleas of guilty to Counts 1 and 4. Count 2 withdrawn and placed on Form 1. 22.5.18 Sentencing hearing. 25.5.18 Sentence imposed.
2. In summary, some two and a half years elapsed between when the offences were committed and when the present proceedings commenced with the applicant's first appearance in court on summons. There is no apparent explanation for that delay. There were then three and a half years until pleas of guilty were entered and a further six months until sentence was imposed.
3. Counsel submitted to the primary judge that "there are issues of totality". [3] This was a reference to the offences for which the applicant was charged following the execution of the search warrant at his home on 31 December 2011, and for which he received the suspended sentence and fines on 13 August 2012 (see above at [14]). She also made submissions in relation to the period of delay between the offending and the present proceedings being initiated in May 2014, and "the issue of rehabilitation in the meantime", referring to the seven and a half years between offending and sentencing. [4]
4. In the course of reviewing the applicant's subjective case, the judge referred to aspects of his life in general, such his employment, and his relationship with his current partner. [5] He also referred to the applicant's appearance in the Local Court in 2012 in respect of the charges laid following the execution of the search warrant on 31 December 2011. He referred to the applicant having been supervised by Community Corrections and having attended upon alcohol and drug services, psychological counselling, and having received support in finding employment. [6] Later, his Honour said that he was "satisfied that the offender has reasonable prospects of rehabilitation", a finding which coincided with the submissions of the applicant's counsel. [7]

Applicant's submissions

1. The applicant's written submissions referred to the fact that he was sentenced for the present offences more than five years after having successfully completed the suspended sentence imposed in 2012. [8]
2. Reference was made to the submissions which had been made to the primary judge and the fact that his Honour had said nothing about "the submission on the applicant's behalf concerning the delay in dealing with the subject offences or to the fact of the delay per se". [9] This point was not further developed.
3. It was submitted that the limited evidence before the District Court suggested that the delay was largely attributable to the effluxion of time before charges were laid, and to the fact that after having been committed for trial on 15 September 2014, his trial was twice "not reached". [10]
4. It was accepted by counsel for the applicant that the delay was not the sole cause of the applicant's anxiety, but it was submitted that it was "self-evident" that the delay did not assist. [11]
5. The written submissions continued: "[n]or was the impact of the delay upon the applicant confined to anxiety concerning the ultimate sentence to be imposed upon him". [12] Reference was made to the applicant's various driving licence qualifications, and to his job driving trucks which he said was "exactly what I want to be doing" - a job which he lost when he entered his pleas of guilty to the offences. [13] At the hearing in this Court, this was relied upon as a matter relevant to the "staleness" of the offences. [14]

Consideration

1. There are numerous cases in which judges have reviewed the principles concerning the relevance of delay to the assessment of sentence; one example is Sabra v R [2015] NSWCCA 38 at [27]-[38]. Various matters have been identified that might be of significance in a particular case.
2. In the District Court the applicant's case was focussed upon his rehabilitation in the years between offending and sentencing. In this Court, the applicant also relied upon there having been some implicit exacerbation of his condition of anxiety caused by the delay and the fact that his life had moved on by way of his gaining qualifications and desirable employment, being progress which was then disrupted by the sentencing process.
3. The response to these matters can be stated quite briefly. As to rehabilitation, a submission was made to the primary judge that the applicant had reasonable prospects and that is precisely what the judge accepted. As to the exacerbation of the condition of anxiety, even if this submission is accepted, this was a matter operating in the applicant's favour by contributing to the bases upon which the non-parole period was reduced. The evidence concerning the applicant's attainment of qualifications and employment which was "exactly what he wanted" was expressly referred to in the judge's sentencing remarks. The effect of the sentencing process disrupting all of that progress cannot have been lost on the judge.
4. There is no merit in this ground.

Ground 2 - concurrency and accumulation

1. Counsel for the applicant submitted to the primary judge that both offences involved the discharge of a firearm. She said, "Having regard to count 4, taking into account the injury that was sustained to the victim, in my submission, some slight accumulation may be appropriate, notwithstanding that there's the single firing of the weapon". [15] The Crown submitted that there should be "some partial accumulation" to reflect the injuries sustained by the victim, notwithstanding the two offences arose from the same act. [16]
2. The judge simply said: "I need to take into account when setting [the aggregate] term the question of totality and appropriately in my view, partial accumulation". [17]
3. In this Court, it was submitted that the judge had notionally accumulated the sentences such that the applicant "was required to serve a further 9 months referable to Count 4". This was said to be 60% of the 15 month notional term for that offence. Another analysis was that the aggregate sentence of 4 years represented 89% of the sum of the two indicative sentences (4 years, 6 months). Therefore, it was submitted, the judge had almost totally accumulated the sentences for the two offences which arose from a single act. This was said to exceed what was available in the exercise of the judge's discretion for two offences that were not only part of a single episode of criminality, but were committed by a single act.
4. It was also submitted that the judge did not give reasons for such a substantial degree of accumulation.

Consideration

1. The judge referred to "the question of totality" and said that he considered it appropriate that there be "partial accumulation". There can be no suggestion that he was not alive to the relevant and well-known principles: see, for example, Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]; R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52].
2. To reiterate, the aggregate sentence was 4 years and the individual (notional) sentences were 3 years, 3 months and 1 year, 3 months. Aside from the manner in which the applicant has analysed it, there are various other ways in which the level of accumulation can be viewed. One way is to say that the sentence for the offence in Count 1 comprised 81% of the total term. Another is to say that the sentence for the offence in Count 4 comprised 31% of the total term. Moreover, it is as open to say that the aggregate term incorporates 9 months of the sentence for the Count 4 offence as it is to say it incorporates 15 months for that offence and 2 years, 9 months for the Count 1 offence.
3. The fact of the matter is that judges are not required to approach the task of sentencing in an arithmetical fashion. In this instance, the question for the judge to consider was the appropriate sentence that would be proportionate to the totality of the applicant's criminality. It is not necessarily the case that the judge has to think of precise periods of time by which one sentence is notionally accumulated upon another.
4. The criminality inherent in the offence in Count 4 was additional to that within Count 1. Count 1 involved the firing of the rifle with disregard to a person's safety. It was not an element of that offence that somebody was shot and thereby sustained really serious bodily harm. Part of the unchallenged material before the primary judge was that the harm had persisted and was almost certainly a matter that the victim would endure in the long term. This constituted the additional criminality that the sentence for Count 4, and the degree of accumulation, had to reflect. There was only a relatively slight overlap in the elements of the two offences, that the discharge of the rifle was an unlawful act. Acceptance of the applicant's submission that there be only "some slight accumulation" would have been considerably generous. It was consistent with principle and thereby well open to the judge to proceed as he did.
5. Ground 2 must be rejected.

Ground 3 - sentence manifestly excessive

1. Counsel for the applicant submitted that the indicative sentence for the offence in Count 4 was too high, when compared to its maximum penalty of 2 years, and having regard to the 15% reduction allowed for the applicant's plea of guilty. This was said to be particularly so, given the offence had been committed more than seven years earlier; the injury to the victim, while significant, was well below the most serious kind of grievous bodily harm; the applicant had been separately charged and sentenced for the unlawful act giving rise to the injury, namely the discharge of the firearm; and the applicant's subjective case was said to afford him "real assistance" on sentence. [18]
2. Significant aspects of the applicant's subjective case were the findings by the primary judge that he had "shown contrition"; that he had experienced problematic anxiety for the previous five years requiring further care and treatment; and that he had reasonable prospects of rehabilitation. [19] The applicant's "mental difficulties" was one basis for the judge's finding of special circumstances.
3. It was also submitted that the applicant should have been afforded "very substantial leniency" because he was being sentenced for a "stale offence", in a context where he had already served a suspended sentence of imprisonment for an offence arising from the same episode of criminality. [20]

Consideration

1. Dealing first with just the indicative sentence for Count 4, it may be assumed that the judge adopted a starting point of 18 months before the 15% reduction yielded a result (with rounding) of 15 months. Where the maximum penalty was 2 years and the offence was assessed as being "within the mid-range of objective seriousness", [21] I am inclined to agree that the indicative sentence for this offence was too high. The applicant conceded, however (and correctly), that an excessive indicative sentence does not necessarily mean that an aggregate sentence is erroneously excessive: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at 40.
2. There was considerably greater criminality involved in the offences in Counts 1 and 4 than in the offences for which the applicant was sentenced in 2012. They only concerned his possession of the firearm and ammunition and for not keeping the firearm safely. On the agreed facts, the applicant was in possession of the items for some time prior to 28 December 2011 and for a few days after until they were found by the police. In that sense, there was discrete criminality in those offences. Firing the gun on 28 December 2011, whilst intoxicated, with no regard to the safety of other persons, and then actually hitting someone and causing them grievous bodily harm with long-lasting and deleterious consequences, warranted an additional and much more severe sentencing response. Denunciation, punishment, deterrence, and acknowledgment of the harm done to the victim were all significant aspects of the purposes of sentencing: Crimes (Sentencing Procedure) Act, s 3A.
3. Responding to a question from the presiding judge at the hearing, counsel for the applicant contended that if he had been sentenced for all the offences on the one occasion at a much earlier time he would have received a more lenient sentence. [22] The question no doubt derived from that posed in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 66: "what would be likely to have been the effective head sentence imposed if the applicant had … been sentenced at one time". In my view the answer is that there would have been a sentence at least the same as that which was imposed by Jeffreys DCJ given no full-time custody was imposed for the other offences. In fact, the sentence for the Counts 1 and 4 offences may have been greater because in 2012, the applicant would not have been able to rely upon the longer period of rehabilitation that he was able to rely upon when sentenced in 2018.
4. The applicant also sought to rely upon his assertion that the degree of notional accumulation of the indicative sentences was excessive, but I have already indicated my view that this does not have any merit.
5. An overall sentence of 4 years, with a significant reduction of what would normally have been the non-parole period to just over half of that, is comfortably proportionate to the overall criminality involved in the two offences. I am not persuaded that the sentencing discretion miscarried.

Orders

1. I propose the following orders: 1. Leave to appeal granted. 2. Dismiss the appeal.

Endnotes

1. The indictment referred to a "prohibited weapon", particularised as a rifle, and the offence was stated to be contrary to s 7(1) of the Firearms Act. Accordingly, this was a misstatement and it should have read "prohibited firearm".
2. The chronology is largely derived from the applicant's criminal history as well as the Crown Sentence Summary which was tendered in the District Court.
3. Tcpt, 22 May 2019, p 14(47)-(50).
4. Tcpt, 22 May 2018, p 14(5).
5. Remarks on sentence (ROS), pp 8-9.
6. ROS, p 9.
7. Tcpt, 22 May 2018, p 14(28); ROS, p 11.
8. Applicant's written submissions (AWS) at par 9.
9. AWS at par 12.
10. AWS at par 15.
11. AWS at par 16; tcpt, 8 May 2019, p 3(5).
12. AWS at par 16.
13. AWS at par 16.
14. Tcpt, 8 May 2019, p 3(30).
15. Tcpt, 22 May 2018, p 15(10).
16. Tcpt, 22 May 2018, pp 11(46)-12(4); p 19(18)-(19).
17. ROS, p 12.
18. AWS [27].
19. ROS, p 11.
20. AWS [30].
21. ROS, p 7.
22. Tcpt, 8 May 2019, p5(4) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2019