The applicant's knowledge of the cartridge in the firearm
The applicant does not dispute that there was a cartridge in the chamber of the rifle when he drove to Ms Dean's house but disputes that he knew of it. Ballistics evidence given at the trial established that the rifle could be fired in that state, without the magazine attached. The learned sentencing judge accepted that this was proved beyond reasonable doubt.
When interviewed by police in the early hours of 13 July 2015 the applicant said he had not known that there was a cartridge in the chamber and that he was unaware the rifle could be discharged without the magazine attached. The applicant told police that his intention with respect to the rifle had been to "wave" it around and "talk rubbish" and "make a bit of noise". The effect of these answers was to deny that he had proposed to fire the weapon as part of the intimidation that, according to the jury's verdict, he had intended.
The learned sentencing judge correctly recognised that he could not sentence the applicant on the basis that he had intended to discharge of the firearm in Ms Dean's presence, as part of the intimidation, unless the intent to discharge it was proved beyond reasonable doubt. His Honour was not satisfied of this to the requisite standard: at [64]. At [66] his Honour made this finding, which was open to him:
I therefore find that the means by which the offender intended to intimidate Ms Dean was likely by brandishing, or waving the rifle, supplemented by the choice of language consistent with that conduct, which may be expected to be menacing and threatening in tone and content.
Later his Honour added the following conclusions (emphasis added):
[76] Finding, as I have in relation to the principal offence, that the offender's intention to intimidate was to be realized by brandishing rather than discharging the firearm does not present a free pass to the offender. The finding I have made in this respect takes him at his word that he did not know it could discharge without the magazine. That is to say, he did not appreciate the capacity of the firearm (even if he had in fact tested it with the magazine).
[77] […] Taking the offender's case at its highest, he believed that it could not discharge without the magazine. Having put the ammunition in the rifle, in my view, it was incumbent upon him to take steps to assure himself that it could not discharge without the magazine. He did not do so.
[78] In my view, and in this respect, it was grossly unreasonable for the offender, at least, in a mental state of rage and self-induced intoxication that the offender was in, to think that he could take a loaded firearm to an intended victim's place with the intention of waving it around. For one thing, given his state of mind, there was the possibility that he might pull the trigger in the erroneous belief that the firearm would not discharge. I agree with the submission of the Crown that without taking any steps to ensure that it could not discharge without the magazine, to take what was a loaded firearm and to use it to scare another person, all the while under the influence of self-induced intoxication was highly culpable.
Dean v R [2020] NSWCCA 317 | Case summary | Zoe
In [78], the word "loaded" is used in the sense of having an unfired cartridge in the chamber, not in the sense of being capable of discharging that round. His Honour expressly said that he was not satisfied to the criminal standard of proof that the applicant knew the rifle was ready to fire. Paragraph [78] proceeds on an assumption that the applicant nevertheless knew the cartridge was in the chamber. The Remarks do not refer to evidence that his Honour may have thought sufficient to support that finding. As a circumstance that would render offences 4 and 7 objectively more serious, it had to be proved beyond reasonable doubt. Knowledge of the presence of the cartridge was not inherent in the jury's verdict. His Honour did not state that he was satisfied to the requisite standard and such a finding would not have been open to him. There was no evidence that the applicant had counted cartridges into the magazine before firing the rifle into the air near his home. Nor was there evidence that he had counted and subtracted the 3 or 4 rounds that he had discharged. The applicant's demonstrable heavy intoxication at the time contributes to a doubt about his having made such a calculation. His detachment of the magazine and the fact that he left it at home gave rise to at least a reasonable possibility that he had not consciously left one live round in the chamber. The applicant's continuing possession of 50 live rounds in his pocket was equivocal. It said nothing about whether he knew there was a round already loaded.
The Crown submitted that the applicant's plea of guilty to offence 4 (possession of a loaded firearm in a public place) "was itself capable of being understood as an admission" that he knew the unfired cartridge was in place. Prior to entering his plea to that charge the applicant was aware that police had found a cartridge in the chamber. His plea of guilty shows that he accepted that as an objective fact but it does not carry an unambiguous implied admission that he knew of the presence of the cartridge at the time of taking the gun to Ms Dean's house. A finding beyond reasonable doubt that he had such knowledge is not supported by this circumstance.
[2]
Subjective circumstances
The applicant was 35 years old at the date of his offences and is now 41. The learned sentencing judge found that he had enjoyed a stable upbringing and attended school until he was 14. He left home to live independently at the age of 15. He obtained a license to drive heavy vehicles and qualifications in asbestos removal. He was qualified to operate a bobcat and to operate other excavation machinery. He had always held employment in machine operating and truck driving and he was employed at the time he committed the offences.
The applicant commenced consuming alcohol at the age of 14 and was a daily drinker by the age of 25. He stopped drinking following the birth of his first daughter in 2005 but relapsed not long after. For at least several years prior to the offences he was accustomed to consuming between 12 and 24 drinks each day. He had in the past attended drug and alcohol counselling at Fairfield Hospital but apparently without success. Prior to marrying Ms Dean the applicant was in a relationship with another partner for about five years up to August 2003. Two children were born of that relationship. He was convicted of a common assault upon his former partner, committed in August 2003. In February 2004 he breached an AVO that had been issued for the protection of the former partner. In May 2011 he committed a common assault upon Ms Dean. He was convicted in Fairfield Local Court of further offences involving Ms Dean at that time, namely, destroying and/or damaging property, stalking and intimidating with intent to cause fear and breach of an AVO. The applicant has convictions for driving with mid-range and low range prescribed concentrations of alcohol dating from 1999 and 2006. The applicant's record, including numerous offences of varying degrees of violence and intimidation against female partners, deny him any claim to lenience in relation to the matters which is now to be reset.
The Court accepts that the applicant has some prospect of rehabilitation, almost entirely dependent upon whether he can reduce his excessive drinking. In a sentencing assessment report of 4 February 2020 a senior community corrections officer assessed the applicant at a medium risk of reoffending. The applicant told the community corrections officer that reflection upon his actions "makes him feel sick" and that "he would never do anything like what he did again". The Court has no reason to doubt the sincerity of those expressions but the risk of further offending must be regarded as significant unless he can successfully address his alcohol problem. He described himself to the committee corrections officer as "a functioning alcoholic". The facts of the case demonstrate that he is highly emotional and volatile and that he does not function within the law whilst heavily under the influence.
[3]
Objective seriousness of each offence and indicative sentences
The following is the Court's assessment of the objective seriousness of each offence, drawing upon the learned sentencing judge's findings. The indicative sentences nominated in relation to the State offences take into account the applicant's subjective circumstances and the percentage discount that has been allowed for the applicant's plea of guilty, varying from offence to offence according to the stage of the prosecution at which the plea was entered. In each case, except offence 7, this is the same discount as that which the learned judge allowed. It was not suggested by either party that his Honour's discounts were inappropriate. The Court has arrived at indicative sentences that are the most part the same as those nominated by his Honour, the departures being in relation to offences 4 and 7.
[4]
Offence 1: discharge firearm near a public place, s 93G(1)(b) Crimes Act
This offence concerned the discharge of the firearm near the applicant's home. It was aimed into the air and not towards or near any person. None of the 3 or 4 shots created an actual risk of physical harm. However, the discharge of the rifle in a suburban street, at night, was a serious breach of the peace. His Honour assessed offence 1 as "towards the mid-range of offending" against s 93G(1)(b). After a discount of 15% the indicative sentence is 3 years imprisonment.
[5]
Offence 2: use carriage service to threaten to kill, s 474.15(1) Criminal Code (Cth)
The applicant's drunken, repeated threatening of his wife by phone, including in one instance a threat conveyed through a conversation with one of his children, culminated in the last call when he was "one minute away". His Honour found this conduct to be "at least in the mid-range of objective seriousness" of offending against the section. We allow a discount of 15%, as his Honour did, having regard to the timing of the plea, and impose a sentence of 3 years. As the sentence does not exceed 3 years, the Court is not required to fix a non-parole period: s 19AB(1)(c)(i) of the Crimes Act 1914 (Cth). Normally, the Court make a recognisance release order: s 19AC(1)(b). However that is not required where the applicant is expected to be serving a State sentence on the day after the federal sentence expires: s 19AC(4)(b). That is the case here, as there will be an aggregate sentence for the State offences that is longer than the federal sentence and that commences one year into the federal sentence for offence 2.
[6]
Offence 3: handle or use a firearm while under the influence of alcohol, s 64(1) Firearms Act
This offence relates to the handling of the firearm, generally, on the evening of 12 July 2015 while in a state of intoxication. There is no doubt that the applicant was seriously intoxicated. Before the jury, he advanced a positive case to that effect. The arresting police observed his speech to be slurred and his behaviour and movements to be consistent with substantial effects of alcohol. His Honour found this offence to fall "below the mid-range of seriousness". The discount for the applicant plea of guilty is 15% and the indicative penalty is 3 years imprisonment.
[7]
Offence 4: possess loaded firearm in a public place, s 93G(1)(a)(i) Crimes Act
This offence relates to the applicant's possession of the loaded weapon in the vicinity of his home and throughout the evening until his arrest. For the reasons given above in relation to ground 4, the seriousness of the offence is not exacerbated by knowledge that the weapon was loaded because it has not been proved that the applicant knew of the single round remaining in the chamber after he had detached the magazine at his home and when he carried the rifle on the back seat of his car to Ms Dean's house. Having regard to the duration of the applicant's possession of a weapon in a loaded state and the circumstances of his possession of it generally, the offence was a serious infringement. After allowing a discount of 25% the indicative sentence is 1 year and 9 months.
[8]
Offence 5: possess unregistered firearm, s 36 Firearms Act
The learned sentencing judge assessed that this offence fell at the lower end of the range of seriousness for the possession of an unregistered firearms having regard to the character of the weapon. After allowing a discount of 25% the indicative penalty is 1 year and 6 months.
[9]
Offence 7: possess offensive weapon with intent to commit an indictable offence (intimidation), s 33(1)(a) Crimes Act
This was plainly the most serious of the offences. It takes little imagination to appreciate the fear that was induced in Ms Dean by the applicant driving to her home, preceded by vicious threatening phone calls and messages, armed with a lethal weapon. Intimidation of a defenceless woman by this means merits strong punishment. The learned sentencing judge's starting point, before applying a discount of 20%, was 6 years and 3 months. On the basis that the applicant was not aware of the live round in the chamber of the weapon the Court adopts a starting point of 6 years. A discount of 25% is to be applied for the reasons given above in connection with ground 3. The indicative sentence is 4 years and 6 months.
[10]
Offence A: intimidation intending to cause fear of physical or mental harm (domestic violence), s 13(1) Crimes (Domestic and Personal Violence) Act
The intimidation comprehended in this offence was the making of intimidatory and abusive phone calls. Of themselves, these calls constituted an infringement of s 13(1) that was at the lower end of the scale of seriousness for an offence of this kind. The more serious intimidatory conduct was charged - and is to be punished - separately under offence 7. After applying a discount of 25% an indicative sentence of 1 year and 3 months is appropriate.
[11]
Offence B: contravene prohibition in an AVO, s 14(1) Crimes (Domestic and Personal Violence) Act
The contravention of the AVO that was the subject of this offence is the same conduct of making the threatening and abusive phone calls, in this case charged on the basis that it constituted prohibited contact with Ms Dean, as a person in need of protection. An indicative sentence of 9 months, after discounting by 25%, is appropriate.
[12]
Offence D: drive vehicle under the influence of alcohol, s 112(1)(a) Road Transport Act
The applicant drove for 13 km through suburban streets in a seriously inebriated state. No blood alcohol reading was obtained but clearly from his conduct and from the observations made of him by investigating police, as well as by his own admission, he was thoroughly under the influence. The danger to pedestrians and to other road users is self-evident. His Honour assessed this as a mid-range breach of s 112(1)(a). A discount of 15% will be allowed and the resulting indicative sentence is 4 months imprisonment.
His Honour imposed disqualification from holding or obtaining a driver license for 12 months. Disqualification for 12 months is automatic under s 205(1)(b) of the Road Traffic Act, taking effect from the date of conviction. The automatic disqualification is extended pursuant to s 206A by any term of imprisonment to which the offender is sentenced in respect of the conviction. As an aggregate sentence is to be imposed, there is no separate period of imprisonment to which the applicant is sentenced solely for the offence of driving under the influence contrary to s 112(1). It therefore appears that the automatic disqualification is not extended by s 206A and will have expired by the date of the applicant's release. It would be open to the Court to impose a period of disqualification pursuant to s 204(1). In this case the offender's livelihood depends upon driving and by the time of his release he will have served a significant term of imprisonment. A period of disqualification would run counter to the objective of rehabilitation and we will not order it.
[13]
Offence E: resist officer in the execution of duty, s 58 Crimes Act
The applicant resisted police when they intercepted him 25m from Ms Dean's home, at a time when he was armed, drunk, threatening and dangerous. His resistance warrants a term of imprisonment. After allowing 15% discount for his plea of guilty we consider that 4 months is an appropriate indicative sentence.
[14]
Orders
The applicant's sentence should commence from the date of his arrest on 12 July 2015. That was agreed by the Crown before his Honour. As indicated above, the sentence for the single offence against Commonwealth law will be 3 years imprisonment and for all of the remaining offences against State provisions there will be an aggregate term of 6 years with a non-parole period of 3 years and 8 months. The removal of his Honour's 1 year indicative sentence for offence 6 has only a slight influence upon the aggregate. The nature of that offence (possession of a quantity of ammunition) added little to the overall criminality. In a notional sense the 1 year indicative sentence for offence 6 must have been largely if not entirely concurrent in his Honour's aggregate. Commencement dates for the Commonwealth and State sentences respectively will be fixed to achieve an effective overall sentence of 7 years with an effective total non-parole period of 4 years and 8 months.
As earlier stated, his Honour's order in respect of offence C will not be disturbed. The conviction on offence 6 will be set aside. In the circumstances, that charge will not be remitted to the Local Court, where it should have been dealt with. The criminality involved in the possession of ammunition was part of the overall episode and, if dealt with together with all other matters, would result in substantial or complete concurrence. It is not warranted to remit that charge for further proceedings at the end of what is now a long history of the prosecution of the applicant for the events of 12 July 2015.
The following orders will be made:
1. Leave to appeal is granted.
2. The appeal against conviction on offence 6 (not keep a firearm safely, contrary to s 39(1)(a) of the Firearms Act 1996 (NSW)) is upheld and the conviction is quashed.
3. The appeal against sentence in respect of offences 1-5 inclusive, 7, A, B, D and E is upheld and the sentences imposed on 13 February 2020 are quashed.
4. In lieu thereof the applicant is sentenced as follows:
1. in respect of offence 2 (use a carriage service to threaten to kill, contrary to s 474.15(1) of the Criminal Code (Cth)) - to a term of imprisonment of 3 years commencing on 12 July 2015 and expiring on 11 July 2018 with a non-parole period of 1 year expiring on 11 July 2016;
2. in respect of offences 1, 3, 4, 5, 7, A, B, D and E - to an aggregate sentence of 6 years commencing on 12 July 2016 and expiring on 11 July 2022 with a non-parole period of 3 years and 8 months expiring on 11 March 2020. The applicant has been eligible for release on parole from 11 March 2020.
[15]
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Decision last updated: 08 December 2020
THE COURT: This is an application for leave to appeal against sentences fixed by Abadee DCJ in the District Court on 13 February 2020 in respect of seven offences prosecuted on indictment and five related offences specified on a certificate under s 168(1)(b) of the Criminal Procedure Act 1986 (NSW). The offences were all committed within the space of about 4½ hours in the late afternoon and evening of 12 July 2015. The applicant had been separated from his former partner, Ms Dean, for about three years. Upon learning that she had formed a relationship with a friend of his, the applicant made threats of violence against Ms Dean by phone, then drove to the home where she lived with their two children, in an intoxicated state, with a rifle for the purpose of intimidating her.
The long delay from the applicant's arrest on 12 July 2015 until sentence was passed on 13 February 2020 was in large part due to the miscarriage of an earlier sentence proceeding that lead to intervention by this Court by orders made on 20 July 2018: Dean v R [2019] NSWCCA 27.
Grounds 1 and 2 conceded by the Crown; ground 5 does not arise
With respect to ground 1, the Crown concedes that there was no jurisdiction in the District Court for the applicant to be prosecuted before it on indictment for offence 6. That is an offence for which no more than 2 years imprisonment can be imposed, with the consequence that it must be dealt with summarily by force of s 6(1)(c) of the Criminal Procedure Act. The order for committal for trial, made in the Campbelltown Local Court on 15 June 2016, was beyond power. Consequently the conviction for offence 6 must be quashed, leave to appeal against sentence must be granted, both sentences imposed by his Honour must be set aside and resentencing must be undertaken by this Court. His Honour's indicative sentence for offence 6, imprisonment for 1 year, is inextricably bound up in the aggregate for the State offences and his Honour made the sentence for the Commonwealth matter partly cumulative on that aggregate. It is not possible to make a discrete correction: Lehn v R [2016] NSWCCA 255.
With respect to ground 2, his Honour found special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act, "where the offender's prospects of rehabilitation are at least reasonable and it is desirable to extend the period on parole to promote that rehabilitation". Having regard to the head sentence and non-parole period in the aggregate sentence for the State offences alone, it appears that his Honour intended to give effect to his finding of special circumstances by achieving a ratio of approximately 66%. In relation to the Commonwealth offence his Honour was not required by the Crimes Act 1914 (Cth) to fix a non-parole period or to make a recognisance release order. The Crimes Act did not preclude his Honour from fixing the Commonwealth sentence to commence first: s 19(3). Nor would there have been any difficulty about a degree of concurrence of the State and Commonwealth sentences.
It was thus open to his Honour to achieve his stated intention of extending the period on parole and, in particular, to achieve a 66% ratio overall, by adjusting the commencement dates of the respective sentences. In other words, the outcome that his Honour intended was not frustrated by the engagement of both State and Commonwealth sentencing regimes. In the event, the commencement and expiry dates adopted by his Honour defeated the objective of a longer period on parole, including in relation to the State matters considered alone. The Crown correctly concedes that leave should be granted in respect of ground 2 and that that ground should be upheld. This is another reason why the sentencing discretion with respect to the applicant will have to be re-exercised by this Court. These concessions and conclusions have the effect that ground 5 does not arise.
Ground 3 - guilty plea offered in respect of offence 7
Ground 3 raises an issue that has to be resolved for the purpose of resentencing. The applicant's conviction on offence 7 was the outcome of the trial referred to at [3] above. He was tried upon two counts in the alternative, the first being possession of an offensive weapon with intent to commit the indictable offence of murder. The jury returned not guilty on that charge but found him guilty of possession of an offensive weapon with intent to commit the indictable offence of intimidation. A charge of possession of an offensive weapon with intent to commit an indictable offence was first laid in August 2016. In September 2016 the applicant had offered to plead guilty to the charge on the basis that the intended indictable offence was intimidation. That is, he offered a plea of guilty to the charge on which he was convicted after trial. The learned sentencing judge accepted that the plea had been offered at the earliest practicable opportunity: Remarks on Sentence at [106]. On 19 November 2019, when arraigned at the commencement of his trial in the presence of the jury panel, the applicant pleaded guilty to the alternative count, offence 7, but the Crown did not accept that plea in satisfaction of the indictment.
The learned sentencing judge gave the following reasons for allowing a discount of only 20% on the indicative sentence for offence 7 (Remarks on Sentence at [107]:
In terms of its utilitarian value, there are circumstances where the value of an early plea is eroded because of a dispute as to facts which are ultimately not determined in favour of the offender [s 25F(3) of the Crimes (Sentencing Procedure) Act]. This, in my view was such a case. It was not part of the Crown case to establish whether or not the offender was intoxicated, on either the primary or alternative counts at the trial. But as indicated both at the trial, and in this sentencing proceeding, intoxication could be a factor which, if proven, could benefit the offender, whether in terms of whether the offence (primary or alternative) was committed or, even if it was, whether the existence of the factor might, in certain ways, result in greater leniency on sentencing (notwithstanding the limitation in s 21A(5AA) of the Crimes (Sentencing Procedure) Act). At trial, virtually all of the Crown's witnesses were cross-examined for their observations and opinions as the offender's state of intoxication. As is clear in these remarks, the circumstances concerning the offender's intoxication have in no way assisted him. It was he who has relied upon them.
It was open to his Honour to apply a discount of only 20% on the above considerations but, upon re-exercise of the sentencing discretion, we would allow the full 25%. The circumstances of the case engage the principles in R v Oinonen [1999] NSWCCA 310; R v Pennisi [2001] NSWCCA 326; R v Cardoso [2003] NSWCCA 15. We would allow the applicant full recognition of the utilitarian benefit that his offer, if accepted, would have conferred. The offer was rejected only because the Crown decided to proceed on the more serious charge, a decision over which the applicant had no control. In saying this, the Court makes no criticism of the Crown for having proceeded to trial. In light of the applicant's express death threats to Ms Dean by phone the Crown was justified in framing the indictment in a way that would have the jury determine whether the applicant had intended to commit murder.
The applicant's offer to plead, both pre-trial and at the commencement of the trial, was made upon clear terms as to the culpability that he was willing to accept. That level of culpability accorded with what the jury found. The applicant's counsel addressed the jury on the basis that they might acquit him outright. It has been held by this Court on more than one occasion that a submission to the jury in those terms, in circumstances such as arose in this case, will not necessarily disentitle the offender from receiving the full discount.
The Crown submitted that if the offered plea had been accepted, the applicant would have put in issue on sentence the extent of his intoxication, as he did at trial, and that that would not have assisted him because self-induced intoxication could not mitigate penalty. It was further submitted that the learned judge was justified in finding that the value of the offered plea was eroded because the applicant put in issue at his trial both the degree of his intoxication and the question whether the firearm could be discharged when its magazine was detached. The Crown submitted that both of these matters were resolved adversely to the applicant.
These submissions assume that if the offered plea had been accepted the applicant's contest over the facts on sentence would nevertheless have resulted in a substantial hearing, of a similar order to the trial. We do not accept that proposition. On acceptance of the plea the applicant's moral culpability and his exposure to penalty would have been so far reduced, relative to a charge involving intent to murder, that it is unlikely any contested issue of fact in the sentence proceedings would have developed into a substantial forensic exercise. Experience shows that once a plea of guilty to a lesser charge has been accepted it is most unusual for there to follow a protracted contest on the facts. Had the plea been accepted when offered, any residual issues in the sentence proceedings would have occupied only a small fraction of the 10 days and the significant resources that were taken up by the trial.