Crago v Regina

Court of Criminal Appeal (NSW)|2006-04-19|Before: Hodgson JA, James J, Hoeben J, Dr P

CITATION: Crago v Regina [2006] NSWCCA 68

JUDGMENT OF: Hodgson JA at 1, 67; James J at 2; Hoeben J at 68

DECISION: Leave to appeal against sentence granted. Appeal allowed. Applicant re-sentenced

Crimes Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Firearms Act

Crimes Act CASES CITED: Crimes (Sentencing Procedure) Act Firearms Act

PARTIES: Christopher Robert CRAGO v REGINA

COUNSEL: M Johnston - Applicant Dr P Power SC - Crown

SOLICITORS: Steve O'Connor - Applicant S Kavanagh (Solicitor for Public Prosecutions) - Crown

LOWER COURT FILE NUMBER(S): 04/21/3158; 04/21/0175

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2006/21

HODGSON JA JAMES J HOEBEN J

1 HODGSON JA: I will ask James J to give the first judgment.

2 JAMES J: Christopher Robert Crago applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Marien SC on 4 March 2005.

3 The applicant had pleaded guilty to 12 charges, being:- a charge of firing a firearm in a manner likely to endanger the safety of a specified person (count 1 in the indictment presented against the applicant); nine charges of using an offensive weapon with intent to commit an indictable offence, namely malicious wounding, while in the company of another person (counts 2-10 in the indictment); a charge of maliciously damaging a motor vehicle (count 11 in the indictment); and a charge of possessing a firearm, namely an air rifle, without being authorised to do so (count 12 in the indictment).

4 The first count in the indictment was a charge under s 93G of the Crimes Act for which the maximum penalty is imprisonment for 10 years.

5 Counts 2-10 in the indictment were charges under s 33B(2) of the Crimes Act of using an offensive weapon with intent to commit an indictable offence whilst in the company of another person, for which the maximum penalty is imprisonment for 15 years.

6 Count 11 in the indictment was a charge under s 195(a) of the Crimes Act, for which the maximum penalty is imprisonment for five years.

7 Count 12 in the indictment was stated to be a charge under s 7 of the Firearms Act, for which the maximum penalty is imprisonment for 14 years.

8 His Honour Judge Marien imposed the following sentences:-

For the offence charged in count 1 of the indictment, a fixed term of imprisonment of two years commencing on 13 March 2004.

For each of the offences charged in counts 2, 3 and 4 of the indictment, a fixed term of imprisonment of two years and nine months commencing on 13 September 2004, the three sentences to be served concurrently.

For each of the offences charged in counts 5, 6 and 7 of the indictment, a fixed term of imprisonment of two years and nine months commencing on 13 September 2005.

For each of the offences charged in counts 8, 9 and 10 of the indictment, a non-parole period of two years and nine months commencing on 13 September 2006 and a balance of term of one year and three months commencing on 13 June 2009.

For the offence charged in count 11, a fixed term of imprisonment of one year commencing on 13 September 2006.

For the offence charged in count 12, a fixed term of imprisonment of two years commencing on 13 March 2004.

9 The overall effect of the sentences imposed was that of sentences totalling six and a half years commencing on 13 March 2004 and expiring on 12 September 2010 and fixed terms of imprisonment and non-parole periods totalling five years and three months commencing on 13 March 2004 and expiring on 12 June 2009.

10 The statement of the facts of the offences by the sentencing judge in his remarks on sentence was based on a statement of facts admitted without objection in the proceedings on sentence and was not the subject of any criticism upon the hearing of this application. All of the offences were committed on the same day, being 11 January 2004. His Honour's statement of the facts of the offences was:- "…with respect to count 1, that on the morning of 11 January 2004, the offender was in the company of a Michael Rogan at the suburb of Fairy Meadow. At about 8.15 am he went to a tavern where Rogan was employed as a contract cleaner. That tavern overlooks a car park attached to a Woolworths supermarket store. The offender used his air rifle to shoot at magpies in the rear garden of the tavern. After he had shot a magpie, Rogan also used the air rifle to shoot the magpie. Nancy Frazer, aged sixty years, who was in the company of her eighty year old mother was in the Woolworths car park loading groceries into the boot of her car. Mrs Frazer heard a loud thud and felt a sharp pain to the back of her arm. She told her mother she had been shot. Mrs Frazer then sought medical attention and x-rays were taken. There was no pellet found on the x-ray and no exit wound. Her treating doctor was of the opinion that her injury was consistent with a graze by a projectile. Mrs Frazer attended the Wollongong Police Station and reported the matter. The facts state that there is no evidence that the offender deliberately shot at or in the direction of Mrs Frazer. Count 2. On 11 January 2004, at 4.55 pm, the victim Mary Khoder, aged sixty-five years was walking in Railway Parade, Fairfield with the assistance of a walker and felt a sharp pain in her right shoulder. The victim was treated by her local doctor and a small air rifle pellet was removed from her shoulder area. Police were notified. Count 3. On 11 January 2004 at 5.25 pm, Thanh Vuong aged thirty-nine years, was shot in the lower back region whilst at the corner of Peel and Canley Vale Road, Canley Valle. A small metallic object was located in his shirt after the shooting. Count 4. Between 5.30 pm and 6 pm on the same day the victim Consuelo De-Leon, aged fifty-one years, was walking in the Fairfield Forum approaching her motor vehicle when she felt a pain to the rear of her head with blood flowing freely from the injury. The victim was conveyed to Fairfield Hospital and a small air rifle projectile was surgically removed. The victim saw a white van near her when she was shot. Count 5. At 5.45 pm the victim Bradley Wright, aged fifteen years was walking in Canley Vale Road and heard a loud noise similar to a firearm discharging and immediately felt pain to his chest area. The victim was conveyed to hospital and an air rifle pellet was recovered from his wound. Count 6. At 6 pm or shortly thereafter, the victim Sam Ly, aged fifty years, was standing on the footpath outside a restaurant in The Boulevard, Fairfield when he felt a sharp pain to his chest area. He was taken to Fairfield Heights Medical Centre and later transported to Fairfield Hospital for treatment for a penetrating wound to his chest, the result of being shot by an air rifle projectile. Count 7. Around 6 pm on the same day, the victim David Chalabi, aged eleven years, was riding his bicycle in Barbara Street, Fairfield when he heard a loud noise similar to a cap gun discharging. The victim then saw blood flowing from his left arm. The victim looked up and saw a white van take off at speed away from the area. The victim was admitted to Liverpool Hospital where a small projectile was identified as being lodged in his hand. Because of the proximity of the pellet to the nerves in the hand it was not possible to remove the pellet without the risk of further nerve damage. Count 8. At 6.45 pm, the victim Andre Khoury, aged fifty-four years was walking in Sackville Street, Fairfield and felt a sharp pain to his elbow area which bled. He was taken to the Spencer Street Medical Centre, Fairfield. A small projectile was removed from his right elbow area. Count 9. On the same day, between 6.30 pm and 7 pm, the victim Thi Thu Pham, fifty-one years old, parked her car in the Fairfield car park. She commenced walking towards the shopping centre and felt a sharp pain to her upper left chest area. She noticed the area was bleeding and a small metal object was stuck to the outside of her clothing, consistent with an air rifle pellet. The victim continued walking towards the front entrance of the Fairfield Forum and noticed a white van with a male driver parked near this entrance. The victim attended her local doctor the following day and was treated for her injury. Count 10. On the same day, Riva Yaco, aged seventeen years, was walking along Harris Street, Fairfield in the company of a friend when he felt a sharp pain to his chest. He was bleeding from a wound to his chest. He went home where he informed his parents what had happened. Following publicity regarding the other shooting incidents, the victim sought medical attention on 16 January 2004, but there was no evidence of a penetrating injury. Count 11. On the same day at 5.15 pm, Irena Korunoska, was driving her father's motor vehicle in an easterly direction along Canley Vale Road Canley Heights, when she heard a loud bang on the driver's side of the car. She stopped the car and noticed a dent above the rear passenger door on the driver's side consistent with being struck with an air rifle. Count 12. Relates to an air rifle that was found in the possession of the offender. The offender admitted to police that he purchased it for fifty dollars at the hotel in Queensland in December in 2003". 11 As a result of the information received by police, the van the applicant was driving was stopped. Police searched the van and found a packet of air rifle pellets. In the rear part of the van there was a sofa facing the side window, which could be opened. After the van was stopped and searched, the applicant was arrested.

12 When first interviewed by police the applicant denied any knowledge of the packet of air rifle pellets and denied any knowledge of the shootings.

13 Police received information from a fellow employee of the applicant that the applicant had admitted that on 11 January 2004 he had been driving a vehicle, while a passenger "Jeremy" shot at victims.

14 Information was also received from another person that he had observed the applicant near bushland. When police searched this area, the air rifle which had been used in the shootings was found.

15 The applicant was again interviewed by police and in this interview he declined to answer most questions, in the exercise of his right to silence but, to the extent he answered questions, he denied any knowledge of the shootings. However, after this second interview the applicant informed police that a friend of his, Jeremy Smith, had been the shooter and that the applicant had been driving the van while the shootings took place.

16 The applicant was again interviewed by police and in this interview the applicant admitted that he owned an air gun, that he had been driving the vehicle while Smith fired the air gun and that he had subsequently attempted to conceal the air gun.

17 The air rifle and the pellets recovered from the victims were examined by a ballistics expert. Two of the pellets were positively identified as having been discharged from the air rifle owned by the applicant.

18 The applicant was sentenced on the basis that, although he had not been the shooter, he had been a party to a joint criminal enterprise with Smith to commit the offence of malicious wounding in company. The applicant had participated in the commission of the offences by driving the van, knowing that Smith was shooting with the air rifle from the rear of the van. The applicant had also provided the air rifle and the ammunition.

19 In his remarks on sentence the sentencing judge commented that the offences were "of the most extreme objective seriousness." Over a period of some hours Smith, as part of the joint criminal enterprise with the applicant, had deliberately and randomly shot at and injured nine persons, ranging in age from 11 to 65 years.

20 In his remarks on sentence his Honour noted some of the subjective features of the applicant. The applicant was 35 years old at the time of the commission of the offences. He had begun using cannabis at 15 years of age and this had escalated to daily use of cannabis from about the age of 18. He had also abused alcohol. After his arrest and while in custody he had abstained from using drugs and had attended counselling and a number of drug and alcohol courses.

21 Ms Collins, a psychologist who had interviewed and assessed the applicant, expressed the opinion that the applicant impressed as genuine in wanting to remain drug free but that he would need ongoing drug and alcohol counselling when released from gaol in order to reduce the risk of relapsing.

22 In his remarks on sentence the sentencing judge dealt with a number of matters. His Honour accepted that, although the applicant had been committed for trial on far more serious charges under s 33 of the Crimes Act, his pleas of guilty had been entered at the first reasonable opportunity after the charges against him had been reduced from charges under s 33 of the Crimes Act to charges under s 33B.

23 With regard to parity or proportionality of sentencing as between the applicant and the co-offender Smith, the sentencing judge observed that Smith, who had previously been sentenced by his Honour, had been sentenced for offences under s 33 and not s 33B; that Smith had not been sentenced for any offences corresponding to the charges in counts 1 and 12 of the indictment against the applicant; that Smith had only been 19 years old at the time of the commission of the offences; that Smith had no previous criminal convictions, whereas the applicant had a record of prior criminal convictions, although none for crimes of violence; that in sentencing Smith Judge Marien had made a finding that Smith had been led into the commission of the offences by the applicant as an older man, but that no such finding was being made in the sentencing of the applicant.

24 His Honour found that the applicant had provided assistance to the authorities, in that he had nominated Smith as the co-offender. His Honour found that, without this assistance, the police would have had difficulty in identifying Smith as being the co-offender.

25 His Honour found that he should allow a combined discount of 50 per cent for the utilitarian value of the pleas of guilty and the assistance provided by the applicant to the authorities.

26 His Honour considered there should be some partial accumulation of sentences, on the grounds that wholly concurrent sentences would not adequately reflect the applicant's total criminality.

27 His Honour found special circumstances justifying a variation of the usual ratio between the term of the sentence and the non-parole period in the need of the applicant for on-going and close supervision "with respect to drug and alcohol management".

28 His Honour found the following aggravating factors within s 21A of the Crimes (Sentencing Procedure) Act. At the time the offences were committed the applicant was on bail (s 21A(2)(j)). Although it was not a case of a high degree of sophisticated planning, the offences were, to some degree, planned (s 21A(2)(n)). The offences involved a series of criminal acts involving multiple victims (s 21A(2)(m)). The offences occurred in a public place without due regard for public safety (s 21A(2)(i)).

29 With regard to the offence charged in count 12 of the indictment, the sentencing judge noted that the maximum penalty was imprisonment for 14 years and that a standard non-parole period of three years had been set. His Honour observed, correctly, that because the applicant had pleaded guilty to the offences, the standard non-parole period was not directly applicable but that, nevertheless, it remained of relevance in the sentencing as a reference point, bench mark or guide post. His Honour proceeded to find that the present offence, because of the nature of the firearm as an air rifle, fell, not within the middle of the range of objective seriousness for such offences but at the lower end of the range.

30 The applicant was arrested on 13 January 2004 and refused bail. On 15 April, whilst he was in custody, he was sentenced in the Local Court to a fixed term of imprisonment of four months commencing on 13 January 2004 for contravening an apprehended domestic violence order. Rather than make the sentences he was about to impose commence from either 13 January 2004 or 13 May 2004, that is on the expiration of the sentence of four months, his Honour decided to make the sentences he was about to impose commence half way through the sentence of four months, that is 13 March 2004.

31 Counsel for the applicant relied on four grounds of appeal, namely: "1. The sentencing judge failed to give effect to the finding of special circumstances. 2. The sentencing judge failed to adequately take into account totality. 3. The individual sentences and the total effective sentence are manifestly excessive. 4. The difference in the penalties imposed on the co-offender gives rise to a justifiable sense of grievance to the applicant".

32 I will deal with the grounds of appeal in order.

33 As I stated earlier in this judgment, his Honour found special circumstances in the applicant's need for ongoing supervision after his release from prison, with respect to the management of his problems with drugs and alcohol. His Honour further found that those circumstances would justify a variation of the usual ratio between the term of a sentence and the non-parole period of the sentence.

34 His Honour gave effect to those findings in the sentences he imposed for the offences charged in counts 8, 9 and 10 of the indictment. Each of those sentences was for a total term of four years with a non-parole period of two years and nine months, with the balance of the term of one year and three months exceeding one-third of the non-parole period.

35 However, when the sentences are viewed overall, the total of the terms or head sentences is six and a half years and the total of the fixed terms of imprisonment or non-parole periods is five years and three months, so that, viewing the sentences overall, not only does the balance of one year and three months, during which the applicant would be eligible for release on parole, not exceed one-third of the total period the applicant would have to serve in prison, it is less than one-third of the total period the applicant would have to serve in prison. The position is exacerbated, to a small degree, by the circumstance that the applicant had to serve two months in prison, before commencing to serve the sentences imposed by his Honour.

36 Counsel for the Crown referred to the decision of this Court in Regina v Maxfield [2005] NSWCCA 136. However, in that case the sentencing judge in his remarks on sentence expressly stated that he would vary the usual ratio in the sentences he pronounced, only for such sentences as would not be fixed terms of imprisonment.

37 I conclude that in imposing the sentences he did and in structuring those sentences as he did, the sentencing judge failed to give effect to his own findings and that this ground of appeal should be upheld.

Grounds 2 and 3 38 These grounds of appeal can conveniently be dealt with together.

39 It was submitted by counsel for the applicant that, considered in their totality, the sentences imposed by his Honour were manifestly excessive. It was submitted that the sentence for the offence charged in count 1 of the indictment was itself manifestly excessive.

40 It was conceded that the offences were serious and it was a serious aggravating factor that the offences were committed whilst the applicant was on bail. However, it was pointed out that the offences charged in counts 2-10 of the indictment were offences under s 33B of the Crimes Act, and not s 33, and did not include any element of an intention to inflict really serious bodily injury.

41 It was pointed out that the applicant had not been the actual shooter.

42 It was submitted that some of the aggravating factors specified in the charges or found by the sentencing judge in his remarks on sentence should have been accorded little weight.

43 It was pointed out that the sentencing Judge said that he had allowed a combined discount of 50 per cent for the applicant's pleas of guilty and for the assistance provided by the applicant to the authorities, so that, before allowing this discount, the sentencing judge must have had in mind sentences totalling 13 years.

44 In its submissions the Crown relied on the number of offences, the number of victims, the prominent role played by the applicant in the commission of the offences, even if he had not been the actual shooter; the injuries to the victims; the fact that in some cases the air rifle pellet had to be medically extracted from the victim's body; and the circumstance of aggravation that the offences had been committed whilst the applicant was on bail.

45 In my opinion, it should be held that the sentences in their totality were manifestly excessive.

46 I accept that the offences were serious and merited a substantial total term of imprisonment. That the applicant was on bail when he committed the offences was a serious circumstance of aggravation. Furthermore, although the applicant was not the actual shooter, he provided and drove the vehicle and he provided both the air rifle and the ammunition. As was stated by the High Court in G A S v The Queen (2004) 217 CLR 198, there is no universal principle that the culpability of an aider and abetter is less than that of a principal offender.

50 However, although I regard the offences as serious, I consider that the sentencing judge was over-stating their seriousness in characterising them as being "of the most extreme objective seriousness."

47 It is a simple matter to postulate other cases of discharging a firearm at a number of persons, which would be of much greater objective seriousness than the present offences. The firearm used in the commission of the present offences was an air rifle and not any of the much more dangerous firearms that fall within the operation of the Firearms Act.

48 As counsel for the applicant submitted, it must be kept in mind that the offences charged in counts 2-10 of the indictment, to which the applicant pleaded guilty, did not include as an element any intention to cause really serious bodily injury.

49 Many of the aggravating factors included in the charges, or found by his Honour, apart from the fact that the applicant was on bail, should have been given very little weight. There was very little planning and, although there were a number of offences, each offence involved only a single criminal act and a single victim.

50 As was submitted by counsel for the applicant, his Honour, before allowing a combined discount of 50 per cent for the applicant's pleas of guilty and assistance to the authorities, must have had in mind sentences totalling 13 years, which I consider would have been manifestly excessive, if the applicant had not pleaded guilty and had not provided assistance.

51 As stated earlier in this judgment, the offence charged in count 12 of the indictment was treated as an offence under s 7 of the Firearms Act for which the maximum penalty is imprisonment for 14 years and for which a standard non-parole period of three years has been set. However, s 7 applies only to a "prohibited firearm or pistol" and an air rifle is not a prohibited firearm within the meaning of that expression in the Firearms Act, nor, of course, is it a pistol (see the Firearms Act s 4 and Schedule 1).

52 The applicant should not, in fact, have been convicted of an offence under s 7 of the Firearms Act. He would have been guilty of an offence under s 7A of the Firearms Act, of possessing a firearm without being authorised, but the maximum penalty for this offence is imprisonment for only five years and no standard non-parole period has been set.

53 As stated earlier in this judgment, his Honour, although holding that the standard non-parole period set for an offence under s 7 of the Firearms Act was not directly applicable to sentencing the applicant for the offence charged in count 12 of the indictment, nevertheless regarded the standard non-parole period as being a point of reference, a bench mark and a guide post.

54 In so regarding the standard non-parole period for an offence under s 7 of the Firearms Act, his Honour was in error in his sentencing of the applicant for the offence the applicant had actually committed. However, more fundamentally, it seems to me that his Honour's belief that unauthorised possession of the firearm which had been used in committing the offences was itself an offence for which the maximum penalty was imprisonment for 15 years and for which a standard non-parole period of three years had been set, played a part in causing his Honour to overstate the objective seriousness of the offences.

55 I would uphold grounds of appeal 3 and 4. Ground 4

59 Having regard to my conclusions that the previous grounds of appeal should be upheld, it is not really necessary to consider this ground of appeal.

56 The co-offender Smith had been previously sentenced by Judge Marien for nine offences under s 33 of the Crimes Act of maliciously shooting at persons with intent to do grievous bodily harm and one offence of maliciously damaging property. Smith was not sentenced for any offences corresponding with either the offence charged in count 1 in the indictment against the applicant or the offence charged in count 12 of the indictment against the applicant.

57 For six of the offences under s 33 of the Crimes Act Judge Marien imposed fixed terms of imprisonment of three years and for three of the offences under s 33 his Honour imposed sentences of imprisonment for five years with non-parole periods of three years. For the offence of maliciously damaging property, his Honour imposed a sentence of a fixed term of imprisonment for 12 months. After some of the sentences were partly accumulated, the total of the terms of imprisonment imposed was seven years and the total of the fixed terms and the non-parole periods was five years.

58 There were clearly differences between both the objective criminality and the subjective features of the applicant and of Smith. Nevertheless it was accepted by Judge Marien, and I would accept, that there was a need for his Honour, in sentencing the applicant, to endeavour to achieve some sort of proportionality with the sentences which had been imposed on Smith.

59 There were some factors favouring the applicant and some factors favouring the co-offender. The applicant was sentenced for a larger number of offences. On the other hand, Smith was sentenced for offences under s 33 of the Crimes Act, whereas the applicant was sentenced for offences under s 33B of the Act. The applicant was 35 years old at the time of the offences, whereas Smith was only 19. In sentencing Smith the sentencing judge had found that Smith, to some extent, had been led into committing some of the offences by the applicant, who was an older man. Smith had no previous criminal history, whereas the applicant had some prior criminal convictions, although none for acts of violence. The applicant was on bail at the time of committing the offences. Each of the applicant and Smith was given a combined discount of 50 per cent for early pleas of guilty and assistance.

60 It is not a simple task to balance out these various factors and, if I had not upheld the previous grounds of appeal, I might well have concluded that it was open to his Honour to regard the sentences he was imposing on the applicant as properly proportional to the sentences he had imposed on Smith. However, it is unnecessary for me to reach any final decision on this ground of appeal.

61 Having upheld the first three grounds of appeal it is necessary for this Court to re-sentence the applicant. I have already set out the objective facts of the offences and the subjective features of the applicant. In re-sentencing the applicant I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act. In re-sentencing the applicant I would retain the same grouping of offences as the sentencing judge made and the same commencement date for the first offence. I would also retain the same combined discount for the pleas of guilty and the assistance provided, even though that discount might arguably be regarded as somewhat generous. I would find special circumstances as found by his Honour. I would also adopt a similar kind of partial accumulation of sentences to that adopted by his Honour.

63 Leave to appeal against the sentences imposed by Judge Marien SC on 4 March 2005 granted. Appeal allowed. Sentences imposed by Judge Marien SC quashed and in lieu thereof the following sentences imposed: (1) For the offence charged in count 1 of the indictment, a fixed term of imprisonment of 18 months commencing on 13 March 2004 and expiring on 12 September 2005.

(2) For each of the offences charged in counts 2-4 of the indictment, a fixed term of imprisonment of two years commencing on 13 September 2004 and expiring on 12 September 2006.

(3) For each of the offences charged in counts 5-7 of the indictment, a fixed term of imprisonment of two years commencing on 13 March 2005 and expiring on 12 March 2007.

(4) For each of the offences charged in counts 8-10 of the indictment, a non-parole period of one and a half years commencing on 13 March 2006 and expiring on 12 September 2007, with a balance of term of one and a half years commencing on 13 September 2007 and expiring on 12 March 2009.

(5) For the offence charged in count 11 of the indictment, a fixed term of imprisonment of one year commencing on 13 March 2006 and expiring on 12 March 2007.

(6) For the offence charged in count 12 of the indictment, a fixed term of imprisonment of one year also commencing on 13 March 2006 and expiring on 12 March 2007.

64 The total effect of the sentences is imprisonment for terms totalling five years commencing on 13 March 2004 with fixed terms of imprisonment and non-parole periods totalling three and a half years, expiring on 12 September 2007.

65 The earliest date on which the applicant will be eligible for release on parole will be 12 September 2007.

66 I confirm the orders made by Judge Marien SC under s 166 of the Crimes (Sentencing Procedure) Act.

68 HOEBEN J: I agree with the orders James J has proposed.

69 HODGSON JA: The orders of the Court are as proposed by James J.

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Judgment (92 paragraphs)

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Cases Cited (2)