Burns v R

Court of Criminal Appeal (NSW)|2019-02-01|Before: Hulme J, Wright J, Fagan J

Solicitors: Aboriginal Legal Service (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2015/00340901012 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 9 December 2016 Before: Lerve DCJ File Number(s): 2015/00340901012

Judgment

R A HULME J: I agree with the orders proposed by Wright J for the reasons his Honour has provided.
I wish to add that one cannot be critical of the sentencing judge for the error that has been conceded by the Crown. His Honour was sitting in a busy country centre renowned for its high workload. He proceeded to sentence immediately upon hearing the evidence and submissions. He was misled (no doubt inadvertently) by the "Crown Sentence Summary" document which indicated the wrong maximum penalty for the shortened firearm offence. It is unfortunate that experienced counsel who appeared for the applicant did not detect the error. His Honour was entitled to greater assistance.

The applicant's grounds of appeal are: 1. "When sentencing the offender in relation to Count 2, his Honour erred by relying on the wrong maximum penalty for the offence, stating that the maximum penalty for the offence was imprisonment of 14 years when, at the time the offence occurred, the maximum penalty was in fact 10 years imprisonment." 2. "His Honour erred by failing to find a causal link between the applicant's mental health issues and the offence."

Ground 1 - error conceded

In his remarks on sentence delivered on 9 December 2016, the sentencing judge stated that the maximum penalty for the offence contrary to s 62(1)(b) of the Firearms Act was 14 years imprisonment. The offence had, however, occurred on 17 November 2015. The Crown, in its written submissions, correctly conceded that, as at the date of offending, the maximum penalty for an offence under s 62(1)(b) was imprisonment for 10 years not 14 years. On 24 November 2015, s 62(1) had been amended by the Firearms and Weapons Prohibition Legislation Amendment Act 2015 (NSW), Sch 1 Item [9], to increase the maximum penalty from 10 to 14 years.
The Crown also conceded that the sentencing judge had had regard to the wrong maximum penalty and that this error required this Court to re-exercise the sentencing discretion afresh, in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
Where, as here, there are a number of offences and an aggregate sentence was imposed, the question arises whether the error as to the maximum penalty in relation to the offence of possess a shortened firearm had a material bearing upon the assessment of the aggregate sentence. If not, it would be difficult to say that his Honour "acted" on that matter, so as to make a House v The King error in the exercise of his discretion: see Andreata v R [2015] NSWCCA 239 at [28] per Beech-Jones J, (Ward JA and Adams J agreeing) and Baxter v R [2007] NSWCCA 237 at [60] per Kirby J (Spigelman CJ and Latham J agreeing) and at [83] and [84] per Latham J.
In my view the error was material. The sentencing judge expressly identified a 14 year maximum penalty for the offence of possess a shortened firearm in his remarks on sentence. He also explicitly commented on the seriousness of such an offence by quoting the passage in R v Lachlan [2015] NSWCCA 178 at [72] where Gleeson JA said: "… shortened firearms could have no legitimate purpose. Compact firearms are particularly dangerous because of their capacity for concealment …. This makes them suited for serious criminal activity."
Finally, his Honour took the approach that possession of a shortened shotgun in this case constituted "separate offending and there would need to be some accumulation".
These matters, together with the lengths of the indicative sentences and of the aggregate sentence imposed, indicate that the erroneous maximum penalty did have a material bearing upon the assessment of the aggregate sentence and, thus, the sentencing judge did "act" upon the error in the maximum penalty when determining the sentence.
Consequently, I accept that the second concession made by the Crown was properly made and the applicant's first ground of appeal should be upheld. It follows that this Court's power to re-sentence is enlivened unless, in the exercise of its discretion, the Court is satisfied that no other sentence is warranted in law: DL v The Queen [2018] HCA 32 at [9].
In these circumstances, it is not strictly necessary to address ground 2. Nonetheless, since the subject matter of ground 2 has some relevance on re-sentencing, it is useful to make some observations on that ground.

Ground 2

The second ground of appeal concerned whether there was any error by the sentencing judge in failing to find a causal link between the applicant's mental health issues and the offences.
A significant difficulty for the applicant with this ground of appeal is that counsel for the applicant who appeared at the sentencing hearing expressly denied that it was being said that there was a causal connection between the applicant's depression and the offending. In this regard, counsel agreed with the sentencing judge that the applicant's mental health, and in particular "the depression", was "part of the subjective mix". This discussion between the sentencing judge and the applicant's counsel occurred before the applicant gave evidence and was cross-examined, and before submissions.
In this Court, the applicant sought to overcome this difficulty in two ways: first, by arguing that the disavowal of a causal connection case was limited to the matters in the Juvenile Justice report (exhibit 2), and was not specifically related to the material in the psychologist's report (exhibit 1); secondly, by relying on the exception, identified in Zreika v R [2012] NSWCCA 44 at [81] and [82], to the principle that on an appeal such as this the Court will not generally entertain arguments that seek to resile from concessions made below or that are a contradiction of submissions previously made.
As to the first, it was submitted that: "[w]hen this report [Ex 2] was tendered his Honour asked the applicant's Counsel whether there was said to be a causal connection between the depression and the offence, to which counsel replied, "No." His Honour suggested the report was 'part of the subjective mix.' Counsel agreed with that proposition. However, the more significant report dealing with the applicant's psychological condition was the psychologist's report … which became exhibit 1." (footnotes excluded)
A review of the transcript does not, however, support an understanding of counsel's disavowal of a causal connection as being limited to what was in the Juvenile Justice report. The relevant transcript records the following: "HIS HONOUR: Mr Nash [counsel for the applicant], are you calling any evidence? NASH: Yes, I am going to call Mr Burns to give some brief oral evidence. I tender the psychological report. HIS HONOUR: I've marked that exhibit 1. NASH: I'm sorry. Thank you. There is also a Juvenile Justice background report [Ex 2] that we obtained from Juvenile Justice. I understand my solicitor forwarded it to your associate. We forwarded it yesterday afternoon. It's dated 2 November 2012. I've got a copy of it. It's limited - we rely on it for the limited purpose of confirming a diagnosis of depression earlier on in Mr Burns life in about 2012, at a time when he was in a juvenile detention centre and assessed by a psychiatrist there, and also really as a corroborative of material in the psychological report. HIS HONOUR: Are you saying there's a causal connection between the depression … NASH: No, I'm not. HIS HONOUR: But you're saying it's part of the subjective mix? NASH: That's right, yes. HIS HONOUR: That's as I would have understood from the report, but I just wanted to make sure. …"
The "it" in his Honour's question, "But you're saying it's part of the subjective mix?" refers to the depression or the applicant's mental health, not to the Juvenile Justice report as the applicant's written submission contended. What the sentencing judge "understood from the report" appears to be his understanding based on the psychological report (exhibit 1), which the applicant's counsel contended was corroborated by the Juvenile Justice report (exhibit 2). This is consistent with his Honour's later comment: "There is nothing in the [psychologist's] report that supports a conclusion that there is any cause or [causal] link between any of those disorders and the offending ..."
Secondly, the general principle in Zreika, and the exception to it, were referred to in the following terms by Johnson J (McClellan CJ at CL and Rothman J agreeing) at [80] to [82]: "80 There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. … 81 The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]. 82 In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance."
In the light of both the sentencing judge's remarks on sentence and counsel for the applicant's submissions at the hearing, it does not appear that there was most compelling material available in exhibits 1 and 2 that was not used or understood. Nor was that material overlooked. The sentencing judge summarised at some length aspects of the psychologist's report and the Juvenile Justice report in his remarks (at pp 8 - 10). His Honour noted the diagnoses of a major depressive disorder, traumatic stress disorder, cannabis use disorder, alcohol use disorder and stimulant use disorder and that characteristics of an anti-social personality disorder were prominent. He found that "[a]ll of those matters are part of the subjective mix" and the psychologist's report did not support there being a causal link between any of the applicant's mental disorders and the offending. It was also noted that the applicant did not submit that there was a causal link. On this appeal, it was not contended that the sentencing judge's conclusion, that the psychologist's report did not support there being a causal link, was impermissible on the material before him.
Nor does it appear that there would be a serious injustice if the applicant were not allowed to raise this matter on appeal. As a result of the disavowal, at the hearing, of a causal link between the applicant's depression or mental state and the offending, there was no need for the Crown to test that case in cross-examination, to make submissions on it, or otherwise to deal with it. Moreover, the applicant's mental health issues were expressly identified, and taken into account as part of the subjective mix, by the sentencing judge when imposing the aggregate sentence that he did.
The observations by Bellew J in Vossos v R [2016] NSWCCA 262 at [62] and [63] are also relevant: "62 In the absence of such causal connection, an offender's mental state may still be relevant on sentence in the various respects to which Simpson J referred. The difficulty for the applicant in the present case is that none of those matters were raised before the sentencing judge. In particular, it was not put to the sentencing judge that the applicant was an inappropriate vehicle for general deterrence. On the contrary, the submission made by the applicant's then solicitor expressly acknowledged that there was a high need for general deterrence in cases of this nature. Further, it was not put to the sentencing judge that the applicant was suffering from any mental impairment which had the capacity to impact adversely on his conditions of custody. Contrary to the submission of counsel for the applicant before this Court, the proposition put to the sentencing judge (at [12] above) fell substantially short of a submission that the applicant's conditions of custody were materially affected by his mental state. Finally, it was not put to the sentencing judge that the applicant's impaired intelligence was a factor relevant to the assessment of his prospects of rehabilitation. 63 The reliance on these matters by counsel for the applicant before this Court amounted to an attempt to litigate issues which had not been the subject of submissions to the sentencing judge. It is appropriate to reiterate that in determining an application for leave to appeal against sentence, this Court is not re-hearing a plea in mitigation. An application for leave to appeal against sentence is not the occasion for the revision and reformulation of the case presented below, and this Court will not lightly entertain arguments that could have been, but were not, advanced at first instance: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [79]-[81]."
For these reasons, were it necessary to reach a decision on this second ground of appeal, I would reject it.

The re-sentencing discretion

Being satisfied that the sentencing judge's discretion has miscarried as contended in the first ground of appeal because of the identification of the erroneous maximum penalty, this Court's power to re-sentence under s 6(3) of the Criminal Appeal Act 1912 (NSW) has been enlivened, unless we are satisfied that no other (generally lesser) sentence is warranted in law.
In exercising its re-sentencing discretion, the Court does not assess whether and to what degree the error influenced the original aggregate sentence. It must exercise the discretion afresh, taking into account the purposes of sentencing and the factors required by law to be considered: Kentwell v The Queen (2014) 252 CLR 601 at [42]; [2014] HCA 37, endorsing the analysis of Spigelman CJ in Baxter v R [2007] NSWCCA 237 at [19].
Absent exceptional circumstances, of which there are none in the present case, the appropriate sentence is to be determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and relevant evidence of the offender's post‑sentence conduct, if any: DL v The Queen [2018] HCA 32 at [9].

The offences

The applicant and the victim had known each other for approximately 12 months as friends at the time of the commission of the offences. In late October 2015, in West Dubbo, the victim had a discussion about the applicant's children with the applicant. The victim looked up photographs of the children on Facebook via his tablet and saved them as he wanted to see if they looked alike and like the applicant. A few days later, in Gilgandra, the applicant's partner removed the victim's tablet from his car. The applicant subsequently saw the photos on the victim's tablet.
These photos were not of an indecent or sexualised nature and nor were they stored in a file containing pornographic, indecent or sexualised material. The tablet has never been examined by police.
During the day of Tuesday, 17 November 2015, the applicant and the victim were in contact with each other via Facebook messenger. About 8pm that evening, the victim received a message via Facebook suggesting that they meet to smoke cannabis together that night. The victim drove his motor vehicle and collected the applicant and another male from an address in West Dubbo and then drove to Jinchilla Gardens on Burroway Road near Brocklehurst.
The victim and the applicant were joined by two further males, who arrived in the second vehicle, at Jinchilla Gardens. The victim and applicant smoked cannabis at that location. The applicant also consumed methylamphetamine. The applicant and one other male left the group for approximately five minutes and returned.
At this time, the victim was seated in his motor vehicle and the applicant was armed with a firearm described as a shortened double barrel shotgun. The applicant pointed the firearm towards the victim and said "Get out of the car".
The victim said, "What's going on? What's up?"
The applicant said, "You had pictures on the tablet of my kids", and implied that they were there for a sexual purpose.
The victim replied, "What do you mean I have pictures of your kids, I don't".
The victim told police that the photos of the applicant's children were contained on the tablet because the victim and applicant were friends.
The applicant and victim walked some distance away from where the vehicles were parked. The applicant hit the victim in the face with the barrel of the shot gun, causing bruising to the victim's face and a circular red marking, which remained up until at least June 2016. The applicant required the victim to undress and then shot him in the left leg at near point blank range, causing a gunshot wound to the victim's left thigh. The applicant then left Jinchilla Gardens.
The victim drove himself to the emergency department at Dubbo Base Hospital. From there he was transported to the Royal North Shore Hospital. At North Shore Hospital he was operated on for a gunshot injury to the left thigh. Nerve damage was found to have been suffered and a split skin graft operation was performed by a plastic surgeon.
At the time of the offences, the applicant was not authorised to possess or use a firearm of any kind.
As to the victim's injuries, a statement from Dr Maharaj, a rehabilitation physician, apparently taken on 23 August 2016, but signed on 28 November 2016, recorded that he examined the victim on 14 December 2015, after he had been returned to Dubbo from the Royal North Shore Hospital. Dr Maharaj noted that the victim had required extensive inpatient rehabilitation at Lourdes Hospital in Dubbo. He was admitted with a diagnosis of gunshot wound left thigh, peroneal nerve injury to left leg, neuropathic pain, skin grafts to the left leg and depression. While rehabilitating, the victim developed a urinary tract infection and was subsequently transferred to Dubbo Base Hospital on 21 December 2015. He remained at Dubbo Base Hospital for two days and was transferred to Lourdes Hospital to continue rehabilitation on 23 December 2015. He remained an inpatient at Lourdes Hospital until 29 January 2016. He was subsequently discharged home into the care of his mother. The victim's prognosis was unknown at that stage and Dr Maharaj considered that it may take up to two years from the date of the injury to provide a definitive prognosis.
The report of Dr Kate Crossley, neurologist, dated 11 August 2016 provided further information concerning the victim's injuries. Her conclusions were as follows: "The findings are consistent with chronic moderate to severe injuries to both the sciatic and femoral nerves, affecting distal sensory and motor branches. There are signs of incomplete recovery, with potential for further improvement in ankle strength particularly, but the injuries are unlikely to ever completely resolve given that it is now 9 months since the injury. Ongoing physiotherapy and active participation in leg strengthening exercises should continue to be pursued."
While it was difficult to make an accurate assessment of the injuries and ongoing sequelae suffered by the victim, it was established beyond reasonable doubt that the victim suffered permanent injuries to his leg and that there would never be a full recovery.

Objective seriousness of the offences

The learned sentencing judge assessed the offending as being slightly above the mid-range of objective seriousness. On this appeal, the applicant submitted that each of the offences is "mid-range for their particular type of offence", noting the nature and extent of the victim's injuries. In the absence of any ground challenging his Honour's finding as to objective seriousness and the absence of any error identified by the applicant in his Honour's reasoning and assessment, I would not depart from the sentencing judge's finding.
Even if required to assess objective seriousness afresh, I would accept that the offending in each case was slightly above the mid-range. In addition to the circumstances referred to above, the offence of discharging a firearm with intent to cause grievous bodily harm involved resorting to criminal conduct as a response to suspected misconduct, in relation to the applicant's children, which the applicant, in a drug fuelled state, believed was committed or was intended by the victim. Such conduct is particularly to be discouraged: R v Rayment [2010] NSWCCA 85 at [106] per Johnson J (Rothman J at [163] agreeing). As to the possess shortened firearm offence, I also note the circumstances and way in which the firearm was used and that, in R v Lachlan [2015] NSWCCA 178 at [72], this Court emphasised that shortened firearms could have no legitimate purpose and compact firearms are particularly dangerous because of their capacity for concealment and thus their suitability for serious criminal activity.

Subjective circumstances

The applicant was 21 years of age at the time of sentencing, and 20 at the time of the offences.
His criminal history as a juvenile was extensive and thus does not assist him. The sentencing judge was of the view that overall, given his age, his criminal record could not be an aggravating factor, but it did not entitle the applicant to any leniency.
As the sentencing judge acknowledged, the subjective case for the applicant was very strong. That case included evidence from the applicant, the report from the psychologist, Ms Ann Lucas, the Juvenile Justice background report, and the criminal histories of the applicant's parents.
The applicant is a young, indigenous man whose childhood and family circumstances involved serious deprivation and significant difficulties. He was the victim of sexual assault by relatives as a child, which has caused him to be distressed, have nightmares, engage in avoidant behaviour, and to be hyperactive. He was 8 years old when his mother suicided in custody. Another good friend of the applicant also suicided.
He was introduced to alcohol by his father at about the age of 12 and he had been exposed to alcohol and substance abuse from a very early age and during his formative years. He commenced smoking cannabis when he was in year 8 at high school.
The psychologist assessed that his cognitive and intellectual functioning was at the lower end expected for his age. The applicant has been diagnosed as having a major depressive disorder, traumatic stress disorder, cannabis use disorder, alcohol use disorder and stimulant use disorder. In addition, characteristics of an antisocial personality disorder were prominent.
The sentencing judge could not find on balance that the applicant was unlikely to reoffend nor could he find on balance that there were good prospects of rehabilitation. Nonetheless, it is to be borne in mind that the applicant is still a young man and his situation is not hopeless. As the sentencing judge observed, a lot will depend on the way in which the applicant engages with the appropriate authorities upon his eventual release and whether he remains free from illicit substances.
The sentencing judge was unable to find on balance that the applicant was remorseful and had taken responsibility for his actions. In the applicant's written submission, it was submitted that certain evidence given by the applicant at the sentence hearing was consistent with his "showing genuine remorse for the victim and providing an insight into his own behaviour". In oral submissions, however, counsel for the applicant acknowledged that the judge's inability to find remorse was based on not only on that evidence but also on further material and that it would be difficult to justify making a different finding. In these circumstances, the finding of the sentencing judge in this regard should be accepted.
The applicant was the subject of a s 9 bond at the time of the offending, and this is a statutory factor of aggravation under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.
I accept, as the Crown submitted, that the applicant's background is one which reduces the applicant's moral culpability for the offences and that the emphasis on deterrence, both specific and general, that would normally be required in relation to serious offences such as these, should be mitigated somewhat by the applicant's mental health issues, background and circumstances, in accordance with the principles in Bugmy v The Queen (2013) 249 CLR 571 at [42] to [45]; [2013] HCA 37.
As to his custodial history, the applicant had been held at Lithgow Gaol because of disciplinary issues, in that he had been involved in fights in gaol. He had not been in an adult custodial situation before 2 December 2015. The longest period he had spent in a juvenile institution was 5½ months.

Resentencing

The applicant pleaded guilty at an early stage and is, as a result, entitled to a 25% discount.
I propose that an aggregate sentence should be imposed. Since the possession offence concerned a different type of criminality from the other two offences, and because the three offences each involved discrete conduct, some notional accumulation is required to reflect the totality of the offending.
In relation to determining an appropriate non-parole period, I find that there are special circumstances because of the applicant's youth and the need, as the sentencing judge found, for intensive and extensive supervision upon the applicant's release, in order to attempt to ensure that he does not relapse into using illicit substances and to assist his re-integration into the community.
Having regard to the objective seriousness of each offence and tempering the determination by the subjective matters applicable to the applicant, I propose indicative sentences in respect of each offence as set out in the table below. Starting point: 11 years 1 Discharge a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act - maximum 25 years, standard non-parole period 9 years 25% discount applied: 8 years 3 months Non-parole period: 5 years 6 months 2 Possess a shortened firearm (not a pistol), contrary to s 62(1)(b) of the Firearms Act - maximum 10 years Starting point: 3 years 6 months 25% discount applied: 2 years 8 months 3 Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act - maximum 5 years Starting point: 2 years 25% discount applied: 18 months

Similarly, the aggregate sentence of 10 years with a non-parole period of 6 years and 6 months, that I propose, has been formulated on the basis of the totality of the criminality in the offences; but, once again, it is tempered by the favourable matters that are in the subjective case of the applicant.
As the proposed aggregate sentence is less severe than the aggregate sentence imposed by the District Court, that sentence should be quashed and a fresh sentence should be imposed.

Orders

I propose the following orders: 1. Extend the time for filing the notice of application for leave to appeal to 24 September 2018. 2. Grant the applicant leave to appeal against sentence. 3. The appeal against sentence is allowed. 4. The aggregate sentence imposed in the District Court on 9 December 2016 is quashed. 5. The applicant is sentenced to an aggregate term of imprisonment for 10 years with a non-parole period of 6 years and 6 months. The sentence is to date from 2 March 2016 and expires on 1 March 2026. The applicant will become eligible for release on parole when the non-parole period expires on 1 September 2022.
FAGAN J: I agree with Wright J.

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: 18 February 2019

Firearms and Weapons Prohibition Legislation Amendment Act 2015(NSW)

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