Haidar v R

Local Court of NSW|2010-07-07

PARTIES: Police Jodie Penelope DARE

CATCHWORDS: Fire a firearm in a manner likely to injure persons or property - Possession of unauthorised firearm - - Sentencing considerations - - Objective seriousness of offences - - No previous convictions and prior good character considered in relation to serious offences

Crimes Act 1900 s93G LEGISLATION CITED: Firearms Act 1996 s7 Crimes (Sentencing Procedure) Act 1999

REPRESENTATION: Police Prosecutor: Sgt V. Short/Acting Sgt D. Gumley Accused: Mr G Langford (Solicitor)

1 The Accused was charged with the following offences:

(i) Fire a firearm in a manner likely to injure, or endanger the safety of, herself or any other person or any property, or with disregard for the safety of herself or any other person - s93G(1)(c) Crimes Act 1900; (ii) Possess unauthorised firearm - s7A(1) Firearms Act 1996; (iii) Possess ammunition without holding a licence or permit - s65(3) Firearms Act 1996;

following events that occurred on the Tarcoon Road between Bourke and Brewarrina on 7 July 2010. Sequence 1 is a Table 2 offence unless the prosecution elect to proceed on indictment. The maximum penalty on indictment for sequence 1 is ten (10) years imprisonment, for sequence 2 five (5) years imprisonment, while sequence 3 is a summary offence with a maximum penalty of a fine of up to $5,500.00. As the matters proceeded in the Local Court, the jurisdictional maximum on sequences 1 & 2 is a fine of up to $5,500.00 and or two (2) years imprisonment on each charge. THE FACTS 2 Stephen Gordon left his property near Brewarrina at 5:00pm on 7 July for the purpose of a "road running" with his pet dogs, looking for feral pigs. This is a common activity within the Bourke and Brewarrina shires. He was accompanied by his sons Raymond and Robert (aged 13) and a young lady names Hiallie Jeffries (aged 19). At approximately 6:30 pm they stopped near "the Wilbertree mailbox". Wilbertree is a property owned by Malcolm Dare, the father of the accused. 3 The dogs were then released into the bush to track a pig. Stephen and Raymond Gordon left with the dogs, while Robert and Hiallie remained in the rear of the vehicle. Soon after Robert and Hiallie (the victims) saw a vehicle approaching from behind. It slowed and stopped approximately five metres behind the Gordon's vehicle. 4 The Police Facts then say " Almost instantaneously the victims heard a loud gunshot emanating from behind their vehicle. Following the gunshot a female voice was heard to say in a loud voice, "Get out, come on". The witnesses Stephen and Raymond Gordon have heard this gunshot and commence running towards their vehicle and the victims. The victims stated that the female remained seated in the vehicle and her speech sounded slurred when she spoke. The female remained seated in the vehicle with the lights off for a number of minutes, before starting the vehicle engine and drive forward past the right side the vehicle the victims were seated in (sic). The vehicle is described by the victims as a white four door utility. At this time the female is seen to stop this vehicle level with the front right hand side of the victims vehicle and yell in a loud voice "get out". The area in which the victims(sic) vehicle was on unsealed road (sic), open to and used by the public. The female was heard by the victims to mumble something, she the female now known as Jodie Dare was seen to fire a gunshot at the victims(sic) vehicle from close range striking the bonnet area. The victims began to cry and scream in fear of their life. The witnesses Stephen and Raymond Gordon who were still on foot in the bushland heard the gunshot and continued to run towards their vehicle. Upon returning the vehicle (sic) the witnesses Stephen and Raymond Gordon were able to see a vehicle driving away from their vehicle and the victims towards the town of Gongolgon, which is located approximately 50 kilometres east of the incident. The witness Stephen Gordon was yelling in a loud voice for Robert and Hiallie to respond. No response was heard as the witness approached the vehicle he found his son Robert Gordon in an hysterical state in the rear of the vehicle." 5 The Gordon's then drove home, without collecting their dogs. At home they inspected their vehicle and found a bullet hole had entered the drivers side of the vehicle directly inline with the steering wheel. After they calmed down the Police were contacted. 6 The following day the Police attended Wilbertree and spoke to Malcolm Dare. They learned that the accused lived on a nearby property known as "Cuddy". She was contacted and came to Wilbertree. The Police noticed that her motor vehicle matched the description of the vehicle seen by the victims. The accused admitted she had driven past the victims vehicle and had called on the occupants to "get out", but denied firing a gun. She was arrested but on legal advice declined to take part in an interview. She did however consent to a buccal swab and gave consent for her photograph to be used in a photo book identification procedure. 7 The Police applied for and obtained a search warrant. The accused requested that she be present when the warrant was executed at Cuddy. At the property the accused led Police to two locations in scrubland where she had secreted a box of .22 calibre ammunition and a .22 calibre firearm. They were secreted approximately a kilometre apart. Admissions were then made to the offences and she was charged. She told Police she was unaware anyone was in the vehicle and had called out to ascertain if anyone was inside. The police say in the facts that they were satisfied the intention was to damage property. The accused was granted conditional bail by the Police.

SUBJECTIVE FACTORS OF THE ACCUSED 8 The accused is 36 years of age and the sole provider for four children aged between four (4) and sixteen (16) (all girls). She manages a rural property and attends to the medical needs of her ill father, also assisting him in the running of his property. Her father has cardiac problems, but has a wife who lives with him. Mr Langford explained that on 7 July the accused was returning home when she came across a vehicle she believed may have belonged to poachers or was abandoned. It was near the mailbox and entrance to her father's property where there had been recent vandalism. Photos were tendered of damage to the mailbox and fence on "Wilbertree". 9 The accused contends that as she pulled up she called out "You're on private property" before discharging the firearm in the belief that there were poachers trespassing on the property. It was an impulsive action and totally out of character, but brought on by constant vandalism and trespassing on her father's property. 10 The firearm was an old "hammer style" .22 calibre rifle given to the accused by her grandfather when she was 10. Like most country children she learned to handle firearms and shoot when she was a child and had intended to register the weapon and obtain a firearms licence. The ammunition was for the rifle. 11 She now concedes that she have called the Police. She did not know the victims. She is very sorry for her actions. 12 A number of testimonials were tendered on behalf of the accused. They all expressed their support for Ms Dare and their shock at her actions. Included with the testimonials were letters from her father and step-mother detailing the support she has given them, including the fact that she returned to the Bourke area from the coast to help her father on the property. She denied she was intoxicated and there is support for that denial in one of the testimonials. 13 She has no previous convictions. Mr Langford submitted that because of her good character, her obligations as a single parent, her pleas of guilty and her contrition that a bond was appropriate. He urged the Court not to impose a custodial sentence. OBJECTIVE SERIOUSNESS 14 The Police have not elected to proceed on indictment on sequence 1. As it is a Table 2 offence it must now be dealt with in the Local Court. In order to determine an appropriate sentence it is necessary to first determine the objective seriousness of the offence. In R v Cicekdag [2004] NSWCCA 357 at paragraph 38 the Court of Criminal Appeal (Hoeben J) said "In a case involving a breach of s 93G(1)(b), particularly where more than one shot has been fired, the principle of deterrence, particularly general deterrence, is of considerable importance. In that regard the oft quoted comments in R v Camilleri (NSWCCA, unreported, 8 February, 1990) remain apposite: "In seeking to determine in any case the sentence appropriate to a particular crime, it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done, the other factors requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances, accord with the general moral sense of the community. It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences and whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given the most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of the punishment, that is the protection of the public. The fundamental purpose of punishment is the protection of society. Unless these basic principles of sentencing are adhered to errors will occur." Earlier in his judgement, Hoeben J whilst dealing with the Crown Appeal on sentence made these comments about the objective seriousness of the Respondent's actions

"34 The submissions in support of this ground focus on the inadequacy of his Honour's proposed sentence of 3 years before any discount for the plea of guilty was made and on his Honour's failure to adequately characterise the objective seriousness of each offence. Reference was made to a number of cases involving similar offences where significantly heavier sentences were imposed. 35 Although his Honour did refer to the seriousness of both offences (ROS 4) his Honour does not seem to have appreciated the rationale behind parliament's treatment of the s 93G(1)(b) offence as more serious than malicious wounding. The problem with a projectile weapon, such as a firearm, is that once the projectile has been released it will travel a considerable distance and the firer has no control over its ultimate destination. Death or injury can result. This is particularly so where the discharge is indiscriminate in a public place and as happened here, a number of shots are fired. 15 That offences under s93G are serious is clear. In Regina v Cahill [2004] NSWCCA 451 revised - 10/12/2004 the Court (Smart AJ) said at paragraph 6, " Section 93G(1) creates a number of offences of varying severity. Where a person is charged with firing a firearm in a manner likely to injure a person, it would normally be expected that the Crown would elect to have the matter proceed in the District Court. Absent unusual or exceptional circumstances, a sentence of two years imprisonment is likely to be insufficient, and that is the maximum sentence that the Local Court can impose. It would have been incorrect for the present case to have proceeded in the Local Court. 16 The Court found the sentence imposed was excessive and reduced the sentence on the charge under section 93G(1)(c) of the Crimes Act 1900 to a term of imprisonment comprising a non-parole period of 2 years and 3 months commencing on 23 April 2004 and expiring on 22 July 2006 and an additional term of 21 months commencing on 23 July 2006 and expiring on 22 April 2008; 17 These two decisions were reviewed by the Court of Criminal Appeal in Haidar v R [2007] NSWCCA 95, where on a severity appeal following sentence in the District Court on a charge under s93G(1)(c) Hulme J made the following comments: "52 I turn then to the length of the sentence imposed. Relying on s6(3) of the Criminal Appeal Act, the Crown submitted that no lesser sentence was warranted in law. That sentence was, as I have indicated, one for a total term of 2½ years, including a non-parole period of 18 months. 53 The Judicial Commission statistics are of limited use. They cover all offences under the subsection including some offences inherently less serious than the Applicant's and some inherently more serious; they show that of 32 offenders, 19 were sentenced to full time custody for head sentences varying between 2 and 6 years and with non-parole periods varying between 6 months and 4 years. The sentence imposed on the Applicant was thus among the lighter of the full time custodial sentences albeit heavier than the non-custodial ones. 54 A consideration of some 14 cases including R v Cicekdag, R v Cahill, and R v Barakat mentioned above has also proved largely unhelpful, such were the differences between the circumstances of those cases and those here. I will mention but 2. In R v Cahill this Court reduced to a non-parole period of 2 years and 3 months and an additional term of 21 months a sentence imposed on an offender who had fired a shotgun so that some pellets or gravel propelled by such pellets struck a vehicle some 70 metres away and who pleaded guilty to a charge of firing a firearm in a manner likely to injure a person. It seems to have been accepted that at no time was the weapon aimed at the victim although the Court remarked that there was always the danger of a ricochet. There had earlier been an unsuccessful attempt to fire after which the victim drove away. The offender was on a bond at the time, a fact that was expressly described as an aggravating factor. The sentence resulted in the offender's first time in custody, his prospects of rehabilitation were good and he was regarded as most unlikely to re-offend. It was anticipated that he would have to spend his sentence in some form of protection. 55 R v Cahill contains the complicating factor that the offender was sentenced to an entirely concurrent term including a non-parole period of 18 months and an additional term of 15 months for an offence, regarded as above the midrange and serious, of possessing a firearm contrary to s7(1) of the Firearms Act. As a discrete offence one would have expected there to be some degree of accumulation and although the judges in R v Cahill can be expected to have been aware of R v Pearce (1998) 194 CLR 610, the complete concurrency makes one wonder whether the punishment for the s93G offence included some component for the other offence. 56 In R v Cicekdag [2004] NSWCCA 357 this Court allowed a Crown Appeal and increased from 26 months including a non-parole period of 12 months to 3 years including a non-parole period of 2 years a sentence of imprisonment imposed on an offender who had pleaded guilty to firing a firearm in a public place contrary to the provisions of s93G(1)(b) of the Crimes Act. The Court emphasised that the sentence it imposed "should be less than should have been imposed and in any event towards the lower end of the available range". The meaning of those remarks is not entirely clear but it must be noted that there were a number of factors bearing on that sentence that indicate Mr Cicekdag was in a far worse position than the Applicant here. 57 In determining the sentence to which reference has been made, the Court took into account four other offences, driving while unlicensed, possessing an unregistered firearm and 2 offences of assault occasioning actual bodily harm which were regarded as separate acts of criminality. One of the victims of these assaults was kicked in the head and the other punched in the face and lost consciousness. Cicekdag had a small but significant criminal record, he was the subject of unfavourable Probation and Parole reports, he was on conditional liberty at the time, and there were no indications of contrition. A number of shots had been fired, essentially aimed at the ground although one person was hit in the knee, this last mentioned event leading to a further charge of malicious wounding. The Court said that, particularly as more than one shot was fired, general deterrence was of considerable importance." The facts in Haidar were set out in paragraph's 13 & 14 of the judgement. "13 The Applicant was a security guard and licensed to possess weapons. On the evening of 13 February 2004 he was working pursuant to his employment. He seems to have absented himself for a time from his work and attended shortly after midnight at the premises of a female acquaintance where there was a party in progress. He told persons inside the premises to leave, an argument broke out between the Applicant and Mr Vaughan which extended to each pushing and throwing punches at the other. The fight moved outside, then ceased. Mr Vaughan backed away from the Applicant who continued to try to advance towards him while being restrained by others. There was a short lull and the Applicant went back towards the house. 14 Mr Vaughan ran off down the street. The Applicant followed, stopped in the middle of the road and using both hands fired his .45 Glock semi automatic pistol once in the direction of Mr Vaughan who was then some 70 metres away. He did not intend to hit Mr Vaughan but did intend the bullet to pass near him and did intend to frighten Mr Vaughan."

18 The Court concluded that the sentence should be reduced. "Approaching the matter from first principles, I would not interfere with the sentence imposed by Judge Sorby were it not for the elements of protection and punishment in the Applicant's loss of his firearms and security licences and for his mental condition all of which factors were not properly considered by his Honour. ……….. (iv) In lieu thereof sentence the Applicant to imprisonment for a non-parole period of 1 year commencing on 23 May 2006 together with an additional term of 1 year commencing on 23 May 2007;" 19 A consideration of a weapon being discharged three times combined with a wounding was considered by the Court of Criminal Appeal in R v Abdallah [2005] NSWCCA 365. In that case the Appellant fired three shots into club premises at Revesby. The second shot struck a fleeing club security employee in the ankle. The other two shots struck parts of the club externally and internally. The first and third shots were charged separately as counts 1 and 3 under s93G(1)(b) of the Crimes Act 1900 and the principal charge in Count 2 was brought under s33 of the Crimes Act, which prescribes a maximum penalty of imprisonment for 25 years. The appellant entered pleas of guilty to the first and third counts and was found guilty by a jury on count 2. On 11 June 2004 Marien DCJ sentenced the appellant. On the first count he imposed a sentence of imprisonment for a fixed term of 18 months; on the second, imprisonment for eight years with a non-parole period of five and a half years; and on the third count, a fixed term of imprisonment for three and a half years. He specified that all sentences were to be served concurrently. 20 There was no appeal in relation to the sentences imposed on counts 1 & 3. 21 Finally I turn to the case of Stanford v Regina [2007] NSWCCA 73. In that case the Mr Stanford was sentenced in relation to four offences: Count 1: Firing a firearm with disregard for safety of any other person contrary to section s93G(1)(c) of the Crimes Act 1900 (NSW) and three counts of malicious wounding (contrary to s35(1)(a) of the Crimes Act 1900 (NSW), In addition to those four counts there was a Form 1 offence taken into account: use an unauthorised prohibited firearm, contrary to s7(1) of the Firearms Act 1996 (NSW). He was sentenced to an effective overall sentence of a non-parole period of three years and six months to commence on 25 January 2005 and expire on 24 July 2008, with the remainder of two years to commence on 25 July 2008 and expire on 24 July 2010. On Count 1 after taking into account the matter on Form 1 a non-parole period of eighteen months was imposed. 22 His Honour dealt with the issue of objective seriousness at paragraphs 58 - 65 of the judgement. 58 The other matter raised under this ground of appeal, with which it is necessary to deal, is the assessment by the sentencing judge of the objective seriousness of the offence. As earlier stated, the offence with which the applicant was charged was an offence under s93G of the Crimes Act 1900 (NSW). The particular indictment charged an offence under s93G(1)(c). That section provides: "(1) Any person who: … (c) Carries or fires a firearm … in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person, is liable to imprisonment for ten years." 59 As can be seen, by the reading of that provision, it covers a range of offences of varying seriousness. The categorisation of seriousness will always depend upon the particular facts of an offence. However, all other things being equal (which they cannot be) the offences range from carrying to firing and within each one of those categories there is conduct "likely to injure or likely to endanger the safety of a person", or "likely to injure or endanger property", or "with disregard for the safety of one or more persons". In terms of objective seriousness, endangering property would be usually less serious than endangering a person. Similarly, disregard for the safety of others is less serious than a manner likely to injure or endanger those persons. 60 In this instance, the applicant was charged with firing a firearm with disregard for the safety of the victims. Given the range of offences covered by the provisions of s93G(1)(c) it would be difficult to categorise the offence as a worst case. The categorisation of the objective seriousness of an offence is a matter for the evaluation of the sentencing judge and an appellate court will interfere in the well-known circumstances applicable to appeals from evaluative judgments: R v Dang [2005] NSWCCA 430 at [22]; R v Mulato [2006] NSWCCA 282. 61 Ground (iv) also included complaints that Judge Sides erred in characterising the offence under s93G as one towards the upper end of the range and in concluding that the discharge of the weapon was effected "in a very dangerous way holding the gun in front of his brother who was still in the other seat". So far as the first of these is concerned, the offence charged was of firing a firearm "with disregard for the safety of any other person", and not of firing it in a manner likely to injure or endanger the safety of such a person, offences which also fell within s93G and which, it was submitted, were inherently more serious than that with which the Applicant was charged. 62 The only evidence as to the Applicant's commission of the offence was contained in a "Summary of Facts" which became Exhibit A. So far as is presently relevant that records that the Applicant drove to the scene of the first offence. There, "Shane Stanford (the Applicant's brother) fired two shots from the passenger seat which struck the passenger side cabin of a white truck parked on the grass verge between Grogan's house and the house next door. According to Davis and Shane Stanford, the accused then brought the car to a halt and began firing the shotgun out of the front passenger window of his vehicle. Grogan alleges that when he heard a loud bang he ran to his front door. He saw the accused's black Suzuki Sierra parked about 50 metres away between his house and next door." 63 It was submitted that it is far from clear that the act of firing a long armed weapon through the passenger window when the vehicle was stopped did really represent any increased danger. 64 Both of the complaints presently under consideration are made out. It seems clear that his Honour's remark to the effect that the discharge of the weapon was "in a very dangerous way" was directed to the situation of the Applicant's brother. There was nothing to suggest that the vehicle was itself damaged by the shot and the evidence is consistent with the length of the barrel running past that person and indeed the end of the barrel being out the window of the vehicle. The evidence does not justify the conclusion reflected in Judge Sides' words just quoted. 65 His Honour was also in error in regarding the offence as "towards the upper end of the range". The formulation of the charge was such as to suggest it was towards the lower end of those for which s93G provided and although I do not take the view that all charges formulated by reference to disregarding the safety of others must be less serious than the others for which the section provides, there was nothing in the facts of the case to take the offence into the upper range. 23 On appeal Rothman J reduced his sentence on Count 1. His Honour imposed, after taking into account the offence on the Form 1, a sentence of imprisonment for a non-parole period of 1 year and 3 months commencing on 25 April 2006 together with a balance of term of 1 year commencing on 25 July 2007. 24 The sentencing court is not bound to accept the correctness of an election by the prosecution to bring the matter to finality within this jurisdiction. However, such a decision invariably brings with it, whether properly based or not, a concession that the objective seriousness of the conduct within the offence does not approach that of the gravest of cases.

25 It will be apparent from the cases referred to above that discharging a firearm in a manner likely to injure persons or property is extremely serious. Bearing in mind the comments of Rothman J in Stanford v R and Smart AJ in R v Cahill, Ms Dare is charged with one of the more serious types of the offences that may be laid under s93G, namely under subsection (1)(c). It would not have been at all surprising had this matter been dealt with on indictment. Indeed Smart AJ would probably have expected it to be dealt with in that way. Although the bullets did not strike either of the victims, there was a grave risk of those persons being injured or killed. There was damage to the motor vehicle. This offence occurred in the early evening, but after sunset. It was dark. The road was in a remote rural area. There was no provocation. The ordeal for the victims must have been terrifying. It is implied in the facts that Ms Dare may have been intoxicated (slurred speech) although I find for reasons set out later, that she was not intoxicated at the time of the offence. Taking into account the comments from the Court of Criminal Appeal referred to earlier, the manner of the discharges of the .22 calibre rifle set out in the facts here are in my view at the lower to middle range of objective seriousness. I find that it is in the region of 30% - 35% of the worst case. 26 The possession of the unauthorised firearm, although serious, does not fall into the same category of objective seriousness. An offence under s7A carries a penalty of 5 years imprisonment on indictment. I am of the view that this offence falls at the lower end of the scale of possession cases. It occurred in a rural area. The accused lives and works on a rural property. Guns are common in such areas and can be carried for legitimate reasons associated with the safe operation of a rural enterprise. Of course the accused should have held a licence and had the firearm registered. The possession of the ammunition is likewise an offence at the lower end of the range.

S21A FACTORS 27 The following aggravation features have been taken into account on sentence;

(a) the offence was committed in the presence of a child under the age of 18 (Robert Gordon was 13) - s21A(2)(ea); (b) the offence involved a grave risk of death to another person or persons S21A(2)(ib) 28 The following mitigating factors were taken into account on sentence;

(a) the offence was not planned; s21A(3) (b) (b) the offender has no prior criminal convictions; s21A(3)(e) (c) the offender was a person of good character; s21A(3)(f) (d) the offender is unlikely to re-offend; s21A(3)(g) (e) the offender has good prospects of rehabilitation; s21A(3)(h) PLEA OF GUILTY 29 Pleas of guilty to all charges were entered at the first Court return date. The manner in which a plea of guilty is to be approached by Courts is subject to the guideline judgment of R-v- Thomson and Holten (2000) 49 NSWLR 383 wherein the Court said, "(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian valuer - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, eg assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. (v) The utilitarian value of the plea does not depend upon the strength of the Crown case." 30 Here the accused has entered her plea at the earliest available time. She co-operated with the Police in the recovery of the weapon and ammunition. It is my view that a discount of 25% should apply to all charges. SENTENCE 31 Section 3A sets out seven purposes for which a court may impose a sentence on an offender:

(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, and (g) to recognise the harm done to the victim of the crime and to the community.

Against this background the sentence to be passed on the accused must ultimately reflect the objective seriousness of the offence committed and must be reasonably proportionate to the crime committed R v Geddes (1936) 36 SR (NSW) 554.. In R v Dodd (1991) 57 A Crim R 349 at 354, the Court said " We consider it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence." The Court must denounce the crime and take into account the moral outrage of the community R v Nichols (1991) 57 A Crim R 391. The maximum penalty is not an outcome that occurs as a matter of course. It is only in the gravest of cases that the maximum penalty will fall to be considered. Where an indictable offence is to be dealt with within the jurisdiction of the Local Court however, the Court is required to assess where the objective seriousness of the offence lies by having regard to the maximum penalty for the offence not the maximum penalty which may be imposed by a Local Court R -v- Doan (2000) 50 NSWLR 115.

32 In Stanford v R, Rothman J made the following comments on sentence at paragraph 97; "97 Against that requirement for general deterrence are the factors to which I have alluded. This is the first occasion on which the applicant has been incarcerated. Indeed, it is the first occasion on which the applicant has been charged with a criminal offence. As a person with no prior criminal record and a person who is otherwise of good character, the applicant is entitled to a degree of leniency which takes account of the fact that the behaviour is aberrant." 33 The accused has committed a serious offence. Even if I accept that the first shot was discharged in ignorance of the presence of Robert and Hiallie, I find on the facts agreed to by the accused that she was aware of the presence of the occupants of the vehicle as she called on them to "get out". Robert and Hiallie were screaming and shouting after the second shot. Either the accused was wilfully reckless or her actions were chillingly intentional. The risk of death or injury was high. There was damage to the vehicle. The accused may have been intoxicated, but in the light of the testimonials and the acceptance of those references by the prosecution, I do not find that the accused was intoxicated at the time of the offence. 34 Even though the subjective factors, including her obligations as a parent and her previous good character are compelling, it is my view that anything less than a fulltime custodial sentence would be an error, both as to specific deterrence and more importantly as to general deterrence. There must be a sentence that reflects the community concerns over such an inappropriate and dangerous use of a lethal weapon. I have considered the alternatives to a fulltime custodial sentence (including a suspended sentence) and find that they are not appropriate in these circumstances. Of course two of the options that are available in the metropolitan area, home detention or periodic detention, are not available in this area. The cases referred to above clearly set out the need for general deterrence and the objective seriousness of discharging a firearm near or at persons or property. 35 I take into account that this is the accused's first offence, her behaviour was out of character and that some leniency should be exercised as set out by Rothman J in Stanford v R. I accept that she is well regarded by her referees, unlikely to re-offend again and is genuinely sorry for her actions on 7 July 2010. 36 Leniency as a first offender is a matter I take into account in reducing the head sentence that would otherwise have been imposed and as a special circumstance to vary the usual non-parole period. In my view the starting point for calculating the sentence on sequence 1 is thirty-two (32) months. 37 The accused is entitled to the benefit of her early plea and a discount of 25% is allowed. Accordingly the head sentence on sequence 1 should be twenty-four (24) months. A similar discount has also been applied to the sentences imposed on sequences 2 & 3. 38 Sequence 1 - The offender is convicted and sentenced to a non-parole period of twelve (12) months full time custody and an additional term of twelve (12) months commencing on 19 August 2010. The non-parole period will expire on 18 August 2011. She will be eligible for parole on 19 August 2011 and will remain on parole supervised by the Probation and Parole office until 18 August 2012. I find special circumstances exist to alter the usual non-parole period including her prior good character, first custodial sentence, prospects of rehabilitation and the fact that she is unlikely to re-offend. 39 Sequence 2 - The offender is convicted and ordered to enter into a bond under s9 Crimes Sentencing Procedures Act 1999 to be of good behaviour for three (3) years. 40 Sequence 3 - The offender is convicted and fined $500.00. I allow 28 days to pay. Dated 19 August 2010 R J Clisdell LCM Bourke

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.

(2000) 115 NSWLR 115

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