Ground 1
18 In support of this ground, Counsel drew attention to passages in Judge Sorby's remarks on evidence wherein his Honour said:-
"The facts are objectively serious and reveal a significant disregard for safety of the public and in particular Mr Vaughan. … There is a clear need for members of the public to be deterred from discharging firearms in a public street especially in circumstances where there is a danger to the safety of another person."
19 Later, his Honour observed "In aggravation there are no specific factors under s21A".
20 Counsel also relied on statements by his Honour that the Applicant had aimed and fired his firearm "at the victim".
21 I do not regard his Honour's reference to aiming or firing the weapon "at the victim" as of any relevant significance. It is clear from remarks made during the sentencing proceedings and in the portion of the remarks on sentence where the expression "at the victim" appears that his Honour was fully seized of the true position. Indeed, in the short passage where the words "at the victim" appear twice, his Honour recounts that part of the Agreed Facts as asserts that the Applicant "did not intend to shoot the victim but to frighten him."
22 So far as the first of the complaints being dealt with is concerned, it is appropriate to refer further to some of the evidence and to events during the sentencing proceedings. The evidence was that not far beyond Mr Vaughan at the time the shot was fired, there was a public park. The width of the public park was not the subject of precise evidence although from a street map tendered it is possible to say that the width was probably of the order of 6 to 10 house allotments before a part of it that seems to have been devoted to a public swimming pool. Beyond that was a built-up area. The section of the park nearest to Mr Vaughan seems to have been fairly heavily treed.
23 The range of the bullet was such that, unobstructed, it could readily have traversed the park and part of the built up area beyond. However, photographs of the treed area lead me to think it unlikely that the bullet's travel would have been unobstructed. Those photographs also lead me to think that people were unlikely to have been in that area of the park after midnight. Nevertheless, the fact remains that there was some unquantifiable risk of a member of the public being struck by the bullet.
24 On the first day the proceedings were before his Honour, the Crown was contending that there was an aggravating factor under s21A because the Applicant's actions showed indifference to public safety. Counsel then appearing for the Applicant seemed to agree that was a possible conclusion. However on the second day some 6 weeks later, following it appears some consideration of decisions of this Court, counsel agreed that there were no s21A aggravating factors. His Honour indicated that he also had formed the view that there were no "specific aggravating factors" under s21A.
25 The s21A referred to is of course s21A(2)(i) of the Crimes (Sentencing Procedure) Act, which lists as an aggravating factor that a sentencing court is required to take into account, that "the offence was committed without regard for public safety", although the sub-section also goes on to say that a court is not to have additional regard to any such factor if it is an element of the offence.
26 Although the terms of s93G of the Crimes Act are such that the charge against the Applicant could have referred to disregard of the safety of persons generally, or the public, the charge was not so formulated. Hence disregard of public safety was a matter which s21A(2) permitted, indeed required, to be taken into account if it seemed to have occurred. In my view, counsel and his Honour were in error in their discussion of the topic on the second day of the sentencing proceedings and his Honour was in error in his remarks on sentence when he said that there were no "specific aggravating factors". It follows that there was no error in his Honour's statement that "The facts … reveal a significant disregard for safety of the public and in particular Mr Vaughan".
27 Accordingly, both aspects of this ground of appeal fail.
Grounds 2 and 3
28 Under these grounds there have been raised on behalf of the Applicant a disparate series of matters and it is convenient to consider the grounds together.
29 Attention was drawn to the fact that the Applicant was of good character and aged 24 at the time of the offence and it was submitted that these were matters relevant to sentence. His Honour referred to both of these matters and, unless it be in the length of the sentence itself, there is nothing to indicate the matters were not given their appropriate weight. The appropriateness of the length of the sentence may be deferred until later in these reasons.
30 Reliance was also placed on the remorse said to be inherent in the Applicant's plea and his Honour's findings that the Applicant was unlikely to re-offend, had good prospects of rehabilitation and was a man of good character prior to his offence. These matters helped to distinguish the case so it was submitted from others involving a breach of Section 93G such as R v Cicekdag (2004) 150 A Crim R 299; R v Cahill [2004] NSWCCA 451 and R v Barakat [2005] NSWCCA 143.
31 It was pointed out that quite separately from the imposition of any penalty of the Applicant, protection of the public had been achieved by him being deprived of his weapons and the Firearms Licence he had held and that he had already suffered a form of punishment in the loss of his livelihood and this in circumstances where his intellectual and physical state already reduced his chances of other employment.
32 It may be accepted that the factors mentioned in the last two paragraphs do argue for a lesser rather than a greater penalty although they also are but some of the totality of matters that have to be taken into account. Judge Sorby did not refer to those in the immediately preceding paragraph and the only inference open is that he did not give them any weight. He should have done so.
33 A fourth submission was that his Honour should have taken into account that the charge was one which could have been finalised in the Local Court, in this connection reference being made to Wise v R [2006] NSWCCA 264, R v El Masri [2005] NSWCCA 167. Certainly the factual situation behind this submission exists but the authorities mentioned demonstrate that whether the matter is one of significance depends very much on the facts of the individual case. Here the Applicant's offending was sufficiently serious that it would have been inappropriate for his offence to have been dealt with in the Local Court. In these circumstance Judge Sorby's failure to mention the possibility is immaterial.
34 Another matter referred to was undisputed evidence that the Applicant suffered some physical disabilities, it being submitted that these matters were relevant to any determination of the appropriate length of a custodial sentence but they had not been referred to in the remarks on sentence. Putting aside whatever may have been apparent on seeing the Applicant in the dock, such evidence as there was on these matters was contained in the reports of Dr Nielssen and Mr Champion.
35 The Applicant was described as having an inherited bone condition, physically unusual, short in stature with abnormally short arms, and narrow in the shoulders. His mobility was somewhat limited. He walked with a limp and his gait was referred to as somewhat rocking. He was described as tending to be very wide eyed, and said to have some reduced visual acuity in his right eyed, including what might be termed a key-hole pupil. He was said to have a need to take pain-relieving medication regularly. This evidence does not go far enough to lead to the conclusion that his physical disabilities place the Applicant in a particularly vulnerable situation compared with offenders generally or even a significant proportion of the smaller or weaker of them or as liable to make his time in prison unusually onerous. These physical matters are hence of no weight.
36 Much reliance was placed on Mr Champion's and Dr Nielssen's assessments of the Applicant's mental state. Between them these two recorded a history of substantial developmental delay, difficulty in learning and reading and of the Applicant having been placed in a special reading class. On the other hand it is recorded that he completed year 10 at school. Mr Champion administered all standard subtests of the Wechsler Adult Intelligence Scale. He reported variation in the results, that 2 tests placed the Applicant in the "low average range (9th percentile)" and in the "borderline disabled range (8th percentile)" but concluded that "in general terms I would place his day to day functioning in the lowest 20% perhaps". Mr Champion concluded that the Applicant was not unfit on the basis of intellectual capacity although he referred to the Applicant having "an uneven pattern of cognitive development", and that "'intelligence' is an issue to be given consideration in terms of the question of mitigation, given that Mr Haidar demonstrates obvious deficits in reasoning and judgment". Mr Champion observed that if the testing results were indicative of the Applicant's longer term functioning they suggested that he was not well suited to the form of employment he previously had.
37 Mr Champion also said that the Applicant struggled at times to understand what was being said to him and, having interviewed the Applicant at his home observed that "I was struck by the level of concern each family member expressed for Mr Haidar, it being clear to me that he had always been seen as different or at least needing support and even protection". He anticipated that the Applicant would not cope well with incarceration, may experience a deterioration in his mental state, and certainly a deterioration in his level of depression, with the risk of self-harm not being something which can be ignored".
38 Dr Nielssen reported that the Applicant was slow to recognise the explanation given to him regarding the purpose of the interview, seemed to have difficulty in grasping other abstract concepts such as the interpretation of his reported symptoms and that his speech was simplistic in form in a way that was consistent with low intelligence. Referring to the history of delayed development (which he characterised as "mild") and Mr Champion's testing, Dr Neilssen said that these were consistent with the Applicant's presentation at interview and "the pattern of Mr Haidar's disability is likely to have resulted in below average reasoning, information processing and impulse control".
39 The 2 experts also directed attention to the circumstances of the commission of the offence.
40 According to Mr Champion, the Applicant initially denied being subject to the more overt symptoms of psychosis; then there was "a vague account" of hearing a male voice over the past 2-3 years or so and difficulty in pinning down the asserted frequency with which this voice was said to be heard, what it was the voice said and whether the "voice" was simply the Applicant's own thoughts. Mr Champion expressed the view there was "a need for a psychiatric appraisal to further examine the possibility of psychosis".
41 Dr Nielssen reported that the Applicant had given a spontaneous account of fairly typical hallucinations of voices; that when asked why he had discharged the gun, the Applicant said he did not know why but said "it was like I heard a weird noise in the back of my head… like a voice saying "shoot the gun". Dr Nielssen described the history he was given as including the onset of typical symptoms of psychotic illness in the year before the offence and diagnosed a "possible onset of psychiatric illness". He said that:-
"The pattern of symptoms reported by Mr Haidar were fairly typical of the onset of mental illness, although I note that Mr Champion elicited a slightly different pattern of symptoms …He did not offer a delusional explanation for his symptoms and his offence was not thought to be prompted by delusional beliefs. However, impulsive and irrational behaviour is often observed during the early phase of mental illness and changes in brain function associated with the onset of mental illness may nave been a factor in Mr Haider's offending."
42 In his remarks on sentence Judge Sorby quoted from Dr Nielssen's report at some length, including the passage I have just set out, referred to evidence from the Applicant's employer at the time of his offence that other employees had noted the Applicant to be of "average ability in his work" and concluded:-
"There is no evidence before me that at the time of the offence that the prisoner was suffering from mental illness such that he did not know what he was doing or the difference between right and wrong such would less the importance of general deterrence in this matter. (sic)"
43 Apart from recording that there was no report from the doctor at the Mental Health Service that the Applicant was attending, his Honour made no other significant reference to the Applicant's mental state. It is however appropriate to record that during the second day of the sentencing proceedings there was debate about the significance of the reports of Dr Nielssen and Mr Champion. His Honour remarked that Dr Nielssen's diagnosis was vague but that he was prepared to grant a further adjournment to enable the obtaining of a further report, although his Honour also indicated he saw any such report as going to the topic of rehabilitation and special circumstances. His Honour observed that he was not sure any doctor could give an opinion about the Applicant's mental state at the time of the offence. (In fact, since his offending the Applicant had had a severe motorbike accident and there was an issue as to the extent to which any deficiencies he manifested thereafter were present at the time of this offending.)
44 An adjournment for some 6 weeks was granted. No further report as to the Applicant's mental state was tendered, counsel asking his Honour to accept from the bar table that the treating psychiatrist was not closer than Dr Nielssen as to the issue of mental illness. In light of the evidence, there is no basis upon which Judge Sorby's conclusion in the terms I have quoted as to the absence of evidence of mental illness at the time of offending can be successfully challenged.
45 However, it was submitted on behalf of the Applicant that that was not the end of the relevance of the psychological and psychiatric evidence and Judge Sorby should have, but did not, consider the matter more widely. As I have indicated, his Honour's remarks do not indicate any wider consideration of the topic than I have mentioned.
46 Reliance was placed on R v Israil [2002] NSWCCA 255 at [21-26] and R v Matthews [2004] NSWCCA 112. In the last mentioned case, Wood CJ at CL, with whom Hislop J agreed said:-
"20 It is the case that the presence of a mental disorder, or abnormality, including a significant defect in intellectual functioning, is of relevance, both for an assessment of the extent of an offender's objective criminality, and for a determination as to whether or not the case is one that calls for a particular measure of general or specific deterrence. The principles are well known.
21 …
22 As I explained in Regina v Henry (1999) 46 NSWLR 346 (para 254) the reason for the adoption of the principle which was stated in R v Letteri NSWCCA 18 March 1993, and adopted in R v Engert (1995) 84 A Crim R 67, to the effect that less weight should be given to general deterrence in the case of an offender suffering from a mental disorder or abnormality:
"lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice."