Melbom v Regina

(1) The offences on 23 May 2008 (Exhibit C) 16The applicant, over some weeks prior to 23 May 2008, had formed a relationship with Ms Cherie Brady after moving to short-term accommodation at 16 Ramsgate Street, Botany. Ms Brady's mother lived in the premises next door. The relationship in question deteriorated. 17In the afternoon of on 23 May 2008, the applicant and the victim (Ms Cherie Brady) made an arrangement for the applicant to attend at 18 Ramsgate Street, Botany to pick up his personal belongings. It was during a conversation on this occasion that the applicant threatened the victim. She then waited outside her home with the applicant's belongings. 18At about 7.45 pm on 23 May 2008, the applicant and another person approached the victim's home where a heated argument ensued. After the victim told the applicant that she wanted him to leave her alone, she turned and walked back to the rear yard. The applicant ran after her and grabbed her and pulled her to the ground and began wrestling with her. The victim got up but was then wrestled to the ground once more by the applicant. As a result of the assault, the victim sustained an abrasion to the bridge of her nose and a cut on her right ring finger ( assault occasioning actual bodily harm , Form 1, No 1: maximum penalty of five years' imprisonment). 19When the victim's mother came to assist her daughter, the applicant, who was still assaulting the victim, looked at her and said, "Fuck off inside" . At that time, he was holding a black coloured firearm in his hand. The victim's mother jumped between the applicant and her daughter and pushed her daughter away. In due course, they ran into the family home and locked the rear door ( loaded firearm so as to endanger life : s.93(G)(1)(a)(ii), Crimes Act , 14 years' imprisonment: Exhibit C, offence 1). 20In relation to the second offence occurring on 23 May 2008 (Exhibit C, offence 2), the victim and her mother, who were then in the bedroom at the rear of the house, heard a loud bang. They saw plaster dust come from the wall of the bedroom. The second shot caused them to run to another bedroom and call the police on the emergency number. 21The applicant stood on the roadway outside 18 Ramsgate Street and discharged his firearm twice into the house. Forensic examination revealed that one round struck the front of the house and passed through the garage roll-a-door and continued travelling through a number of walls within the home. A second round was found to have struck the house near a side window. It passed through the window and continued travelling through a number of walls within the home ( fire a firearm at dwelling house with reckless disregard for safety : s.93GA(1), Crimes Act , 14 years' imprisonment: Exhibit C, offence 2). 22In relation to the third offence on 23 May 2008 (Exhibit C, offence 3), residents in 16 Ramsgate Street (being a guesthouse providing short-term accommodation) heard the noise from the discharge of the firearm. A Ms Jennifer Papa and others walked into the front yard. They observed the applicant on the roadway. 23Ms Papa endeavoured to speak to the applicant. She and others called upon him to stop. The applicant then ran in a southerly direction along Ramsgate Street, stopped about 30 metres from Ms Papa and those who were with her, levelled the firearm and shot one round from it in their direction. A projectile from the firearm struck Ms Papa on her lower right leg. 24Ms Papa suffered severe burn and tissue trauma. She was taken to Prince of Wales Hospital and underwent surgery with pins and plates inserted into her leg. Later, by reason of medical complications, her leg was amputated ( discharge firearm with intent to cause grievous bodily harm : s.33A(1)(a), Crimes Act , 25 years' imprisonment: Exhibit C, offence 3). 25Following the third incident, the applicant ran down Ramsgate Street, turned into Cranebrook Street and ran for another 200 metres into 18 Cranebrook Street and then through an open front door. The premises were at the time being cleaned by contract cleaners, in particular, by the victim, Ms Lam, and others. 26Inside the house the applicant levelled a firearm at Ms Lam and demanded the keys to her vehicle which she handed to him. The applicant then ran out of the house and drove off in her vehicle. It was later found abandoned ( aggravated assault with intent to take or drive a motor vehicle : s.154C(2), Crimes Act , 14 years' imprisonment, 5 years standard non-parole period: Exhibit C, offence 4).

(2) The offence on 25 May 2008 - specially aggravated break and enter and commit serious indictable offence (robbery): s.112(3), Crimes Act - Exhibit B 27In relation to an offence on this date, the victims were Mr Ronald Quinn, aged 76, his wife who was aged 72 years and their son, Michael. They resided in a ground floor unit in premises in John Street, Waterloo. 28At 11.30 pm on Sunday 25 May 2008, Mrs Quinn was in the living room at the rear of the premises watching television when she heard a noise. She thought nothing of it and continued to watch television for a short time. After about 20 minutes, the victim went to the bathroom in preparation for bed. The rear sliding door was slightly open with the security door closed, but not locked. 29Mrs Quinn walked from the bedroom into the hallway and was confronted by the applicant. He was holding a shortened rifle with a brown handle and dark metal barrel in his right hand. He was wearing a pair of black gloves. 30He told Mrs Quinn, "I'm not going to hurt you" . The rifle of the barrel at that time was pointing to the floor. 31Mrs Quinn, in fear, called out to her son Michael who was asleep in one of the bedrooms. Her husband, who was partially deaf, did not awake. 32Michael Quinn, in due course, opened his bedroom door and saw the applicant holding a gun next to his mother. He fainted and fell to the floor. 33At some point, the applicant asked Mrs Quinn for the keys to her car. By this time, Mrs Quinn's son, Michael, had revived and they walked to the kitchen. Whilst still holding the firearm, the applicant continued to ask for money. In due course, Mr Quinn came out of the bedroom and saw the applicant holding the firearm towards the bedroom. Mrs Quinn retrieved some money and handed a $50 note to the accused who took it. He asked Mrs Quinn for a bag into which he tried to place the firearm but it did not properly fit within it. 34The applicant then asked the Quinns for more money. He looked through a glass cabinet in the living room and then sat down and smoked two cigarettes. He was seen at this time to be very fidgety and agitated. The Quinns were in fear that he would shoot them. 35The applicant then asked Mrs Quinn to call a taxi, which she did. He removed the battery from the house phone, placed the firearm down his pants and left the apartment. Mr Quinn saw him get into a taxi. 36As a result of the encounter, Mr and Mrs Quinn and their son were all very shocked. 37On 12 June 2008, the applicant was arrested and at the time of arrest, police located a shortened .303 rifle similar to the one described as in the possession of the applicant at the Quinn residence.

(3) Offence on or about 6 June 2008 - being in dwelling house, commit serious indictable offence (larceny) and then break out: s.109(1), Crimes Act 1900 - Exhibit A 38In relation to this offence, Ms Maua was the victim and she lived in a three bedroom, single storey house in Ermington. The block of land on which her house stood backed onto a reserve and a laneway. 39After retiring for the night, Ms Maua locked the doors and windows with the exception of the kitchen window. At about 11.30 pm on Thursday 5 June 2008, the victim went to bed. At about 2.10 am the next morning, she was awaken by screams. She ran into the sitting room and saw her son in law running out of the house towards the rear yard. 40Ms Maua stood in the sitting room and saw that the entertainment cupboard was open and numerous DVDs were scattered over the floor. Her video player was on the floor and the cords removed. 41When she returned to the bedroom, she discovered that her handbag and car keys, which had been left on the bedside table, were missing. She noted a bread knife lying on the bed in the middle room. She also noted her clothes strewn across the floor. Upon checking, she noted her leather jacket was missing from the wardrobe. 42Ms Maua estimated a total property value taken from was on this occasion was about $4,000. 43On 12 June 2008, the applicant was arrested and police subsequently located at his property a number of credits cards in the name of Ms Maua.

(4) Offences occurring on 12 June 2008 44In consequence of electronic surveillance on 12 June 2008, the applicant was found making threats to shoot one Ricky Gitt, who had witnessed the shooting of Ms Jennifer Papa. He had supplied a statement to police about the matter. The applicant made threats to commit acts including sexual assault upon Ursula Brady, and threats of acts of violence against police including shooting police and using explosives to blow up police stations: use carriage service to threaten to kill : s.474.15(1), Criminal Code 1995 (Cth), 10 years' imprisonment, Exhibit C - offence 5. 45At approximately 3.55 pm on 12 June 2008, police attended at an address in Alison Road, Cronulla and arrested the applicant and another person. At that time, a shortened .303 calibre rifle, similar in appearance to that used in the Ramsgate Street, Botany shootings, was located. 46At about 7.25 pm on 12 June 2008, the police executed a search warrant at the Alison Road, Cronulla premises. In a bedroom occupied by the applicant, the police located the shortened .303 calibre rifle with a pistol grip which the police believed was the rifle used in the Ramsgate Street shooting offences. 47On examination, the police discovered one live .303 calibre round chambered in the breach of the firearm. With the firearm was a firearm magazine to suit the rifle. It contained .303 calibre ammunition (nine projectiles in all). Police also located a further 10 rounds of .303 calibre ammunition in a sports bag. 48The rifle seized by police was a firearm within the meaning of s.4, Firearms Act 1996. It was located during the execution of the search warrant. It was a "shortened firearm" as defined by the Act. The applicant did not hold any firearm licence or permit to possess either firearms or ammunitions: possess shortened firearm : s.62(1)(b), Firearms Act , 10 years' imprisonment; possess unauthorised firearm : s.7A(1), Firearms Act , 5 years' imprisonment, Exhibit C - offences 6 and 7 - possess ammunition without holding a licence/permit : Form 1 - number 2. 49The Crown conveniently collated the charges and maximum penalties and sentences imposed by the District Court in respect of the nine offences. I reproduce the following table from the Crown's submissions. Offence details Charge Maximum Penalty Sentence Exhibit A - Victim - Fiosina Maua Being in dwelling house, commit serious indictable offence and then break out -s.109(1) Crimes Act 1900 14 years imprisonment Fixed term of 18 months to date from 12.6.08 and to expire on 11.12.09. Concurrent with BOP 9 June 2008 Exhibit C - offence 5 Victims - Ricky Gitt, Cherie and Ursula Brady, members of NSW Police Use carriage service, threaten to kill - s.474.15(1) Criminal Code Act 2005 (Cth) 10 years imprisonment Fixed term of 18 months to date from 12.6.09 and to expire on 11.12.10 12 June 2008 Exhibit C - offence 1 Victims - Cherie and Ursula Brady Possess loaded firearm so as to endanger life -s.93GA(l)(ii) Crimes Act 1900 14 years imprisonment Fixed term of 2 years and 3 months to date from 12.6.10 and to expire on 11.9.12. 23 May 2008 Exhibit C - offence 2 Discharge firearm at a dwelling house with reckless disregard for safety - s.93GA(l) Crim es Act 1900 14 years imprisonment Fixed term of 3 years 9 months to date from 12.6.10 and to expire on 11.3.14. Victims - Cherie and Ursula Brady 23 May 2008 Exhibit C - offence 6 Possess shortened firearm - s.62(1)(b) Firearms Act 1996 10 years imprisonment Fixed term of 18 months to date from 12.12.11 and to expire on 11.6.13 12 June 2008 Exhibit C - offence 7 Possess unauthorised firearm - s.7A(1) Firearms Act 1996 5 years imprisonment Fixed term of 9 months to date from 12.12.11 and to expire on 11.9.12 12 June 2008 Exhibit C - offence 4 Victim Wai Lam Aggravated assault with intent to take or drive a motor vehicle - s.154C(2) Crimes Act 1900 14 years imprisonment. Standard non-parole period of 5 years Non parole period of 3 years and 9 months to date from 12.6.12 and to expire on 11.3.16 with a total term of 5 years imprisonment commencing on 12.6.12 and expiring on 11.6.17 23 May 2008 Exhibit B Victims - Gwen, Ronald and Michael Quinn Specially aggravated break and enter and commit serious indictable offence (robbery) - s.112(3) Crimes Act 1900 25 years imprisonment. Standard non-parole period of 7 years Non-parole period of 4 years and 6 months to date from 12.6.13 and to expire on 11.12.17 with a total term of 6 years commencing on 12.6.13 and expiring on 11.6.19 25 May 2008 Exhibit C - offence 3 Discharge firearm with intent to cause grievous bodily harm - s.33A(1)(a) Crimes Act 1900 Victim - Jennifer Papa Form 1 taken into account 25 years imprisonment Non-parole period of 9 years and 6 months to date from 12.6.15 and to expire on 11.12.24 with a total term of 15 years dated from 12.6.15 and expiring on 11.6.30 23 May 2008

Applicant's submissions in respect of offences, Exhibit C1, C2, C3, and C4 committed on 23 May 2008 50On behalf of the applicant it was contended that the four offences on 23 May 2008 were committed within a short space of time, probably no more than 30 minutes. Additionally, it was said that they were committed with the same objective and subjective criminality. 51Whilst acknowledging that the four offences were unquestionably very serious, it was said that they were committed "spontaneously in a drug-fuelled rage" (applicant's written submissions, paragraph 37). 52As the table set out earlier in this judgment indicates, the total sentence imposed by the District Court in respect of these four offences was one of 20 years' imprisonment with a non-parole period of 14 years, 6 months. Ms Manuell observed that, allowing for the 25% discount for an early plea, the nominal starting point for the total sentence in respect of the four offences must have been 26 years and 8 months. 53In oral submissions, Ms Manuell contended that error was demonstrated in the application of the totality principle in respect of the sentences for the offences, Exhibits C1, C2, C3 and C4. In that respect, the sentence for the Exhibit C1 offence commenced on 12 June 2008 (the offence involving Ms Brady), the sentence in respect of the Exhibit C4 offence (Ms Lam) commenced on 12 June 2012 and the sentence for the Exhibit C3 offence (Ms Papa), the last in time of those four offences, commenced on 12 June 2015, that is, some five years after the commencement date for the first of the sentences in time within the group, Exhibit C1 to Exhibit C4. 54It was contended that this did not appropriately deal with, what was said to be, the common elements in respect of the offences, except for the fact that there were different victims. In oral submissions, it was emphasised that the four offences in question were committed within a very small time frame. Additionally, the applicant, at the time of the offences, was said to have been in a "drug fuelled rage" resulting from the breakdown of his relationship with Ms Brady. 55Ms Manuell further contended (transcript, p.6):- "... The possession of the firearm, ... underpinned all of the other offences, it underpinned the shooting at the house, it underpinned the shooting at the group, it underpinned the holding of the firearm and Ms Lam. Clearly, that was a common element." 56A separate submission was made that the accumulation on sentences in respect of the Exhibit C2 offence and the Exhibit C4 offence was too great, particularly having regard to the fact that provision had to be made for the sentence to be imposed in respect of the Exhibit C3 offence. 57The contention was that the overall effect was that the combined accumulation being a period of five years, was too high and failed to take account and reflect the factors that were in common in respect of those offences. 58Whilst the sentencing judge's broad discretion to order sentences in respect of multiple offences to be served concurrently and/or cumulatively was acknowledged, it was submitted that a sentencing judge "... should have regard to any discrete groups of offences in order to determine the offender's overall criminality in respect of that particular group of offence" : Written submissions, paragraph 41. 59It was further submitted that the four offences in question should have been regarded "as being part of the one criminal enterprise" (written submissions, paragraph 42). 60The offences, it was said, were committed within the same time frame, within the same locality and with the same objective and subjective criminality. 61Failure to consider the offences as "part of a single criminal episode" it was contended explains the imposition of the following sentences:- (1) 2 years and 3 months imprisonment, fixed term, in respect of the offence C1 (possess loaded firearm). (2) A fully accumulated sentence of 15 years' imprisonment with a non-parole period of 9 years, 6 months in respect of the C3 offence (discharge firearm with intent to cause grievous bodily harm). (3) An effective sentence of 1 years, 6 months imprisonment, fully accumulated, in respect of the C4 offence (take vehicle in circumstances of aggravation). (4) The sentence in respect of the offence C2 (shooting at the Brady's house) was fully concurrent with the sentences imposed in respect of the C1, C3 and C4 offences. 62In relation to the C4 offence (an offence under s.154C(2)), carrying a standard non-parole period of 5 years, it was also contended that the sentencing judge failed to give reasons characterising it as being in the mid-range of objective seriousness contrary to authority including, in particular, Regina v Way (2004) 60 NSWLR 168. 63In the written submissions for the applicant (paragraph 45), it is noted that in respect of the two offences which carry a standard non-parole period (the Exhibit B and the C4 offences), the sentencing judge said that her reasons for imposing lesser non-parole periods than the respective standard non-parole periods were two-fold:- (1) The applicant's pleas of guilty. (2) The need to accumulate the sentences. 64It was argued for the applicant that s.54B(3) of the Crimes (Sentencing Procedure) Act 1999 provides that the Court may only set a non-parole period longer or shorter than that specified for the reasons referred to in s.21A. The need to accumulate sentence was said not to be a reason referred to in s.21A. 65In relation to the offence in Exhibit A (Ms Maua), the applicant was sentenced to 18 months' imprisonment. 66In respect of the Exhibit C5 offence, the applicant was sentenced to an effective sentence of 6 months' imprisonment (use carriage service to make threat to kill) but no effective sentence at all in relation to the Exhibit B offence (Mr and Mrs Quinn and their son) or the Exhibit C6 and Exhibit C7 offences (firearm offences, 12 June 2008). 67It was argued for the applicant (written submissions for the applicant, paragraph 47), that it appeared that after considering the appropriate sentences to be imposed in respect of each offence, the sentencing judge `then failed to consider the degree to which those individual sentences should be accumulated or made cumulative within each of the discrete groups of offences. 68Additionally, it was said (paragraph 48 of the written submissions) that the sentencing judge failed to consider the total sentence to be imposed having determined the discrete sentences for each offence and the discrete groups of offences contrary to the principles stated in Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at [45]. 69It was, accordingly, submitted that the sentences identified by the sentencing judge arrived at an aggregate that exceeded a total sentence that was called for in all of the circumstances of the case. 70It was argued in this respect that the total sentence imposed on the applicant (and the sentence "nominally" imposed) suggested that her Honour did not properly adjust the aggregate downwards "to achieve an appropriate relativity between the [applicant's] criminality and the totality of the sentences" in accordance with dicta of Street CJ in Regina v Holder (1983) 3 NSWLR 245 at 260. It was on these bases contended that the total sentence imposed on the applicant was not "just and appropriate" : Postiglione v The Queen (1997) 189 CLR 295 per McHugh J at 307-308. 71In summary, the case argued for the applicant on Ground 1, accordingly, was that the sentencing judge erred in her application of the totality principle and that the applicant should be re-sentenced.

Crown submissions in respect of offences, Exhibit C1, C2, C3, and C4 committed on 23 May 2008 72The Crown contended that the fact that offences C1, C2, C3, and C4 all took place on 23 May 2008, does not mean that it automatically follows that it is appropriate to impose concurrent sentences where a number of the offences arise out of various incidents on that date. In particular, it was submitted that it would be erroneous to isolate and treat the four offences as one enterprise and then to impose completely concurrent sentences. 73It was submitted that the four offences, C1 to C4 were discrete offences involving multiple victims, separate in time and place and the type of offence in each case and the consequences varied significantly. 74The Crown referred to authority for the proposition that there is no rule or principle that requires sentences for offences committed on the same day or in the same criminal enterprise to be served concurrently: Nguyen v Regina [2007] NSWCCA 14 at [12]; Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55 at [48]. 75The Crown also cited and relied upon authority for the proposition that where there are multiple victims for a sentencing judge to fail to do otherwise than accumulate would be to fail to acknowledge the harm done to the individual victims: Regina v Wilson [2005] NSWCCA 219 at [38] and Vaovosa v Regina [2007] NSWCCA 253 at [19]. 76In respect of the offences C1 to C4, the differences between the two offences, the Crown submitted, were significant involving four separate acts of violence and a separate intention for each. The Crown acknowledged the fact that the four offences could not be considered in isolation given that the applicant also came to be sentenced for a number of other serious offences as well. 77In relation to the question of concurrency, the Crown noted:- · The Exhibit C2 offence (the victims Cherie Brady and Ursula Brady) was made completely concurrent with other sentences and not merely C1 and C4. · The sentence for Exhibit C2 offence was also completely concurrent with the sentences for C6 and C7 (firearm offences). · The sentence for C2 was also partially concurrent with the sentences for C5 (use carriage service to threaten to kill offence) and the Exhibit B offence (specially aggravated break and enter against the Quinns). 78In addition, the Crown observed that in respect of the sentence for the Exhibit C2 offence, the offence was separate in time and place and the type of conduct differed to that involving the Exhibit C3 offence (Ms Papa). The differences in conduct and consequence was said to have been extreme. There was no concurrency between the sentences for the Exhibit C2 and the Exhibit C3 offences. 79In relation to the Exhibit C3 offence, the loss of Ms Papa's leg was an extremely grave consequence of the offence. In addition, when sentencing for that offence, the sentencing judge was required to take into account a Form 1 which contained two offences. 80The Crown also observed in its written submissions (paragraph 52) that the sentence for the Exhibit C3 offence was not "fully accumulated" . In this respect, it was observed that the sentence was partially concurrent with the sentences for other offences, namely, the Exhibit C4 and Exhibit B offences, both of which also carried a maximum penalty of 25 years' imprisonment). 81The Crown emphasised that, in fact, no sentences imposed were "fully accumulated" . Where particular offences were not wholly concurrent, then the sentences were partially accumulated. 82In relation to the sentences for Exhibit C3 (Ms Papa) and C4 offences (Ms Lam), the Crown again emphasised that those offences were separate in time, location and type of offence. Following the shooting of Ms Papa, the applicant ran a distance to another street and then found a house with an open door in which Ms Lam was working as a contract cleaner. He entered the house and levelled the loaded firearm at her causing her to fear for her life. The Crown noted that the entire sentence for the C4 offence was, effectively, concurrent with other sentences. 83The Crown took issue with the description of offences as being divided into "groups" of offences rather than them being a series of offences beginning on 23 May 2008 and concluding with the applicant's arrest on 12 June 2008. The common element in eight of the nine offences was that the applicant had a loaded shortened .303 calibre rifle. 84The Crown contended that all of the sentences reflected a proper application of the principles of totality and proportionality. The approach taken by the sentencing judge, it was submitted, was one that was open to her, it being acknowledged that the sentencing discretion was generally circumscribed by a proper application of the principle of totality: Regina v MMK (2006) A Crim R 481 at [13]. 85The Crown further submitted that the effective aggregate sentence imposed upon the applicant was "the appropriate sentence for all the offences" given the totality of the applicant's criminal behaviour which was extensive and serious. Reference in this respect was made to the High Court's judgment in Johnson v The Queen (2004) 78 ALJR 616 at [18] and Regina v Merrin [2007] NSWCCA 255 per Howie J at [36] and dicta of Howie J in Vaovosa (supra) at [15]. 86In relation to the Exhibit C4 offence (Ms Lam) (where the offence carried a standard non-parole of 5 years as one being in the mid-range of objective seriousness) it was submitted that, having heard competing submissions as to where in the range the offence fell, the sentencing judge determined that the C4 offence fell at the mid-range of objective seriousness thus complying with the requirement to specify where an offence falls in the scale of objective seriousness. 87In relation to the offences Exhibit B (Quinn) and C4, although the standard non-parole period did not strictly apply in the sense that it would if there had been a conviction after trial, it was nonetheless appropriate for her Honour to have regarded it as a point of reference and then to determine where the offence lay on the scale of objective seriousness. It was submitted that this exercise was properly conducted by her Honour. 88Issue was taken with the submission made on behalf of the applicant as to the alleged limitation arising under s.21A. It was emphasised that s.21A permitted consideration of "any other objective or subjective factor that affects the relative seriousness of the offence" . It was said also that the provision permitted matters to be taken into account "... that are required or permitted to be taken into account by the Court under any Act or rule of law" . It was contended that her Honour's remarks on sentence are consistent with a consciousness of the need to lower some sentences below what otherwise might be appropriate in accordance with Johnson (supra) at [26]. 89Accordingly, the Crown submitted that the structure and combined effect of all of the sentences would not satisfy this Court that the sentencing judge's discretion had miscarried. It also contended that it was apparent that the sentencing judge had, in fact, undertaken the process of reasoning mandated in Pearce (supra) and had properly concluded that the principle of totality required the level of cumulation reflected in the sentences passed.

Consideration 90The submission made by the Crown in relation to sentencing for multiple offences, namely, that it does not automatically follow that it is appropriate to impose concurrent sentences where a number of offences arise out of the same incident is clearly correct. I accept the submission also made by the Crown that it would be erroneous to isolate and then treat the offences C1 to C4 as being part of one criminal enterprise and to impose completely concurrent sentences. 91There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. 92It is, at this point, relevant to identify accepted principles which, in my opinion, apply in considering both Ground 1 and the other grounds relied upon. In Regina v XX [2009] NSWCCA 115, I set out the principles concerning sentencing for multiple offences in the following terms:- "52. ... a number of propositions relevant to the consideration of that issue [the imposition of sentences either concurrently or consecutively] may be derived from the case law. They include the following:- (1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing. (2) In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is 'not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed" but his Honour observed that 'this is not an inflexible rule' and "[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct'. (3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina [2007] NSWCCA 14 at [12]. (4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] NSWCCA 272 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina [2007] NSWCCA 253. (5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cahyadi (supra) per Howie J at [27]. (6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cahyadi (supra) per Howie J at [27]. (7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence. (8) In cases involving assault with violence where the offences involve two or more attacks of considerable violence and are distinct and separate (eg, see Regina v Dunn [2004] NSWCCA 41 at [50]) or in cases where there are separate victims of the attacks as in Wilson (supra), the closeness in time and proximity of the two offences will often not be determinative factors. See also Regina v KM [2004] NSWCCA 65. In Wilson (supra), having regard to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act, Simpson J observed at [38] that '... to fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims ...' In Dunn (supra), the respondent to the Crown appeal had entered a guilty plea to an offence under s.51A of the Crimes Act 1900 of breaking and entering the dwelling house of a female, being armed with an offensive weapon, namely a knife with which he wounded the victim by inflicting three shallow lacerations to her neck. He also pleaded guilty to the offence of assaulting a male thereby occasioning actual bodily harm, that crime also occurring in the female's home when the male victim attempted to protect her from the respondent. On the appeal, the Crown submitted that the sentences should have been partially accumulated. Adams J (with whom Ipp JA and Sully J agreed) stated at [50] that there should have been some accumulation in the sentences to reflect the fact that the respondent had persisted in his violence when the male victim attempted, justifiably and lawfully, to restrain him:- '... there is a distinct difference between assaulting one victim and assaulting two. Each was intentionally injured with the knife. The learned sentencing judge did not articulate his reasons for making the sentences wholly concurrent. Merely that the offences occurred in the course of a single extended episode does not justify such a conclusion. In my view the two attacks were distinct and separate instances of considerable violence and required distinct punishment, although they were so closely related in time and proximity as to require a significant degree of concurrency. Of course, it is also important to ensure that the effective sentence thus derived does not exceed the respondent's criminality considered as a whole.' (9) Where two offences committed during the course of a single episode are of a completely different nature and each individually involved significant or extreme gravity, it is likely that some accumulation will be necessary to address the criminality of the two: Nguyen (supra) per Howie J at [13]. (10) Possession of two different kinds of drugs may not be regarded as one episode of criminality in a case of "deemed" supply: Luu v Regina [2008] NSWCCA 285 at [32]. (11) The fact that the evidence of two offences (eg, documentary evidence or the presence of drugs) are located by police at or in the one place is not a relevant factor in favour of concurrent sentences:- '... The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed." ( Cahyadi (supra) at [26]).'" 93In relation to Grounds 1, 2 and 3, it is pertinent to observe that all nine offences committed by the applicant were extremely serious offences, especially so in respect of the Exhibit C4 offence (Lam) which had a maximum penalty of 14 years and the Exhibit B offence (Quinn) and Exhibit C3 (Ms Papa), which each had a maximum penalties of 14 years imprisonment. In respect of the Exhibit C4 offence, there was a standard non-parole period prescribed of 5 years and in respect of the Exhibit B offence, a standard non-parole period was prescribed of 7 years. 94In addition, those offences in particular, involved a very high level of culpability having regard to the extremely dangerous nature of the applicant's conduct in the use of a loaded firearm. Each of the four separate acts of violence, as the Crown observed, had an associated separate intention. These four offences could not be considered in isolation given that the applicant was to be sentenced for a number of other serious offences as well. 95The offence under s.33A(1)(a), it is to be noted, involved the discharge of a weapon, and was committed in the vicinity of members of the public. 96The offences were aggravated by virtue of the fact that the applicant was on parole for possession of a prohibited weapon at the time of the offences and that subsequent to 23 May 2008, he continued his offending behaviour using the firearm. 97The particular offence under s.33A(1)(a) was made all the more serious by virtue of the fact that, not only was it committed with an intent to cause grievous bodily harm, but that it did result in the victim losing a lower limb in consequence of the injuries received. The sentencing judge was correct in finding that the injury sustained was not only substantial but also constituted an aggravating factor to be taken into account. In summary, as the sentencing judge observed, in the period of 20 days, the applicant committed a series of offence which were all "extremely serious" (remarks on sentence, p.8). 98On examination of the particular offences charged (C1, C2, C3 and C4) and the discrete facts concerning each of those offences, the fact that they were committed within a short space of time on 23 May 2008, in my opinion, is of no consequence. I am of the opinion that the sentencing judge was not only entitled, but was required, to treat each as separate offences of a serious nature, to impose sentences in respect of each that properly reflected the criminality involved in the offending and to so structure the sentences in respect of them as to provide for adequate accumulation. 99I do not consider, notwithstanding the earnest arguments of Ms J Manuell SC, that error has been established in relation to the individual sentences imposed or in the accumulation of the sentences. 100I am, accordingly, of the opinion that there is no discernible error in the sentencing judge's application of the totality principle and that, accordingly, Ground 1 should be rejected.

Ground 2: the sentence imposed in respect of the Crimes Act, s.33A(1)(A) offence was manifestly excessive

Ground 3: the total sentence was manifestly excessive

(a) Aggravating and mitigating factors 101Whilst it was acknowledged in the applicant's submissions, as clearly was the case, that all the offences were very serious, it was submitted that the only aggravating factors present in terms of s.21A(2) of the Crimes (Sentencing Procedure) Act , being factors beyond those aggravating factors inherent in the offences, were:- (1) Section 21A(2)(eb) - the offences in Exhibit C1 and Exhibit C2, and offence 1 on the Form 1 were committed in the Brady's home (or front yard). Also, the offence in Exhibit C4 (take vehicle in circumstances of aggravation) was committed in the home Ms Lam was cleaning. (2) Section 21A(2)(j) - the applicant was on conditional liberty at the time he committed all of the offences. (3) Section 21A(2)(l) - the victims in the Exhibit B offence (the Quinns were vulnerable because of their age). 102In the submissions for the applicant, the mitigating factors in terms of s.21A(3) were said to be, firstly in respect of the offences in Exhibit C1, C2, C3 and C4 that they were unplanned (s.21A(3)(b)), that the applicant gave evidence of his remorse (s.21A(3)(i)) and, thirdly, that he pleaded guilty to all the offences (s.21A(3)(k)). 103It was acknowledged that the sentencing judge, in respect of the injury to Ms Papa (Exhibit C3), properly noted that it was a substantial injury and that it was an aggravating factor which she took into account on sentence (s.21A(2)(g)). 104However, it was argued that an intent to cause grievous bodily harm is an element of an offence under s.33A(1)(a) of the Crimes Act .

(b) The s.33A(1)(a) offence - taking the Form 1 matters into account 105The further criticism was that in respect of the Form 1 offences, the approach to be taken on sentence was as stated in Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146. 106In the present case, it was stated that the sentencing judge did not state how she approached the Form 1 offences. Although the Form 1 attached offences to the s.33A(1)(a) offence, the criminality of the offences particularised on the Form 1 were, it was argued, largely encompassed in the criminality of the offences in Exhibit C2, C6 and C7. The principles of totality, it was submitted, needed to be considered, especially in circumstances where a lengthy sentence was already to be imposed in respect of the substantive offence (the s.33A(1)(a) offence). 107It was also contended that, given the length of the sentence imposed in respect of the s.33A(1)(a) offence, it may be that the sentencing judge increased it significantly to reflect the Form 1 offences. However, in the absence of reasons, it was said it was not possible to determine what approach had been taken.

(c) The offence under s.474.15(1), Criminal Code Act 1995 (Cth) 108Further matters raised in the written submissions for the applicant included a contention that there had been an erroneous inclusion of alleged offences in relation to the Criminal Code Act 1995 (Cth), s.474.15(1) offence. 109In relation to this contention, attention was drawn to the type of offences that are the subject of s.474.15(1) and s.474.15(2) of the Criminal Code Act . 110The agreed facts in relation to the C5 offence (the offence under s.474.15(1)) referred, not only to the threat made by the applicant to kill the witness, Mr Gitt, but also reference was made to threats made by the applicant to sexually assault Ursula Brady and to commit violent acts against the police. The point raised was that the sentencing judge referred to the three different types of threats in her findings. 111Section 474.15(1) is concerned only with a threat to kill, whereas a s.474.15(2) offence concerned threats to injure. The applicant was not charged with an offence under s.474.15(2). The complaint made, as previously noted, was that the sentencing judge had referred to the additional (but uncharged) threats to injure in her findings of fact in relation to the s.474.15(1) offence (the C5 offence). 112In these circumstances, it was argued that circumstances of aggravation that are not particularised in an offence cannot be relied upon "if those circumstances could have been made the subject of a distinct charge" : Regina v De Simoni (1981) 147 CLR 383 (per Gibbs CJ at [19]).

(d) The applicant's history 113The remaining submissions in relation to Grounds 2 and 3 pertain to the applicant's criminal history, in relation to his drug history and to issues of remorse and prospects of rehabilitation. 114The fact that the applicant was on conditional liberty at the time of the offences was acknowledged. However, it was said that the subject offences represented a significant and sudden escalation of offending behaviour. 115It was argued that, although the applicant had a number of prior convictions, at the age of 29 years he had never been sentenced in the District or Supreme Courts, as all of his matters had been dealt with in the Children's and Local Courts. 116Taking the applicant's criminal history into account, it was said, against the background of the psychiatric and psychological evidence, that the applicant had long suffered from behavioural disturbances and drug abuse, his criminal record suggested that he was a person who did not ordinarily commit such serious offences. 117As to the applicant's drug history, he reported commenced using alcohol at the age of 10 or 11 years and then commenced smoking cannabis at the age of 11 years, which continued over the next 15 years at a substantial level. 118At the age of 15, he commenced using amphetamines and intermittently used cocaine and ecstasy. He stopped using cannabis when he was about 26. In addition to the childhood history of illicit drug abuse it was said that the applicant was prescribed stimulant medication for ADHD, a condition which was diagnosed at the age of 12 years. 119It was noted that strenuous rehabilitative efforts which previously had been taken were required and that Dr Seidler had recommended placement in the Department of Corrective Services "Compulsory Drug Treatment Centre Programme" prior to release.

(e) Remorse 120In terms of remorse, the applicant's expressions of remorse to the authors of the reports in evidence and to the arresting police officer and to his mother were noted and it was submitted that it would appear that his remorse was genuine as the sentencing judge had, in fact, found. He had also completed behaviour management courses in custody. 121It was finally submitted on behalf of the applicant that he should be re-sentenced in accordance with the principles based upon the authorities identified in the written submissions.

(2) Crown submissions in relation to Grounds 2 and 3 122The Crown took issue with the matters relied upon in the submissions for the applicant concerning Grounds 2 and 3. 123It referred to the maximum penalty for each of the three of the nine offences (being the offences in Exhibit C - offence 4 (Ms Lam), the offence in Exhibit B (the events involving the Quinns) and the offence in Exhibit C - offence 3 (the offence involving Ms Papa). 124The Crown also relied upon the fact that the applicant was on parole for the offences of assault occasioning actual bodily harm and possess/use a prohibited weapon but that, within months of his release in February 2008, he was again in possession of a weapon and ammunition which were used in the commission of the offences. 125The Crown acknowledged that these offences were the first for which the applicant had appeared before the District Court. Nonetheless, he had had a lengthy criminal history dating back to 1995 with convictions for violence such as assault and assault occasioning actual bodily harm. Although he may not have committed such serious offences as those in question, the fact is that he was not a first offender. 126In relation to the contention that the sentencing judge ought not to have regard to additional but uncharged threats to injure in relation to the Exhibit C5 offence, it was said that the evidence concerning the threats was still of relevance to the threat to kill and it also had some relevance in relation to the seizure of the firearm and ammunition later the same day which were the subject of the offences Exhibit C6 and Exhibit C7 and the Form 1 offence. 127Furthermore, the evidence, it was said, was relevant to the applicant's attitude to the offences of 23 May particularly in light of his later expression of remorse. 128In terms of the issue of remorse, the Crown referred to the fact that the sentencing judge dealt with that issue, making a finding that the expressions of remorse were genuine (remarks on sentence, p.9). Accordingly, it was clear that that matter had been given due weight by the sentencing judge. 129The Crown set out in its written submissions a number of references from the medical reports which were in evidence before the sentencing judge including, in particular, the reports of Dr Wilcox and Dr Seidler. 130In a number of extracts quoted from Dr Seidler, there was clear recognition of the fact that the applicant had deep-seated anti-social tendencies complicated by a lengthy polydrug dependence history. Dr Seidler had reported that the applicant was aware of his history of anger management concerns and "a proclivity to interpersonal aggression that dates back to his childhood years. Mr Melbom described himself as a 'shizo'" . Reference was further made to the fact that the applicant was described as being impulsive and volatile in his behaviour. The applicant did not consider that prior participation in anger management intervention previously had been of any tangible benefit principally because it did not address his individual needs. 131Accordingly, such material established that he required treatment in custody to address his "violent and impulsive and erratic behaviour" . 132In relation to the s.33A(1)(a) offence, the Crown noted that that offence was committed in the vicinity of members of the public, a matter to be taken into account: Regina v Saleib [2005] NSWCCA 85. It was also noted that the Form 1 offences were required to be taken into account in relation to that particular offence. 133The Crown also noted that the applicant continued offending and using the firearm even after the events of 23 May 2010 and making threats to kill on the day of his arrest. 134Accordingly, the Crown's contention was that the sentence for the Exhibit C3 offence and the aggregate sentence imposed for the nine offences of a non-parole period of 16 years and 6 months and 5 years and 5 months parole (a total term of 22 years imprisonment) could not be anything other than just and appropriate. 135The Crown contended that the sentences imposed under aggregate fell within the range of a sound exercise of the sentencing discretion and that a lesser sentence was not warranted in law: s.6(3), Criminal Appeal Act 1912.

Consideration 136The maximum penalty for an offence charged under s.33A(1)(a) of the Crimes Act , as earlier indicated, was a term of imprisonment of 25 years. 137The circumstances of the applicant's offence under s.33A(1)(a) plainly indicates that it was an offence at the high end of the range for such offences. In addition to the facts to which I have earlier indicated, I note that, after running along Ramsgate Street, the applicant stopped when approximately 30 metres from Ms Papa and others and deliberately turned in their direction and levelled the firearm in their direction thereby putting any one of them in real and immediate danger. He then proceeded to fire one round of ammunition in the direction of the group. It was in those circumstances that the projectile struck Ms Papa, passing through her lower leg, causing both bone and tissue trauma and the subsequent loss of her leg. 138It can readily be seen that the applicant's use of the weapon in these circumstances involved a high level of criminality towards the female victim, an innocent bystander. 139The sentence for the offence under s.33A(1)(a) involving a non-parole period of 9 years and 6 months with a total term of 15 years' imprisonment is not, in my opinion, outside the range even if the normal starting point, as contended for the applicant, was 20 years' imprisonment as against the maximum penalty of 25 years' imprisonment. There is, of course, to be taken into account the aggravating factors to which I have earlier referred and I do not consider that the mitigating factors relied upon are such as to indicate that the sentence was manifestly excessive. 140In relation to the criticism that the sentencing judge did not explain how she took the Form 1 into account when sentencing the applicant in respect of the offence under s.33A(1)(a), Ms Manuell properly conceded that the matters on the Form 1 were, in the context of the circumstances of the case, "... relatively very minor" (t.8). 141The argument for the applicant was that the criminality of the offences particularised on the Form 1 were largely encompassed in the criminality of the offences in C2, C6 and C7. Further, it was submitted that the principles of totality needed to be considered, especially in circumstances where a lengthy sentence was already to be imposed in respect of the substantive (s.33A(1)(a)) offence. 142I do not consider that there is any basis for concluding, as was submitted, that the sentencing judge erroneously increased the sentence imposed in respect of s.33A(1)(a) offence by reason of the Form 1 matters. 143It is clear, as I have stated above, that the facts and circumstances associated with the offence under s.33A(1)(a) were so serious that the sentence imposed was well within the range and there is no basis, in my opinion, to infer that her Honour unduly increased the sentence by reason of the very minor Form 1 matters. 144In relation to the contention concerning the offence under s.474.15(1) that the sentencing judge erroneously included offences (threats) that were not charged, I do not consider that there is any foundation for the contention made in this respect. In particular, I accept the Crown's submissions on this matter and to which I have previously referred. 145The agreed statement of facts in respect of this offence was entitled "Use Carriage Service (Threaten to Kill)" . 146Whilst s.474.15(1) is concerned only with a threat to kill, there is no basis in what her Honour stated for inferring that she gave any particular weight to the other threats referred to in the agreed facts (threats to injure) as contended in the written submissions for the applicant. 147Her Honour's reference to the facts of this offence simply re-stated what appears in the agreed facts. However, as I have stated, there is no indication that her Honour considered that the threats, other than the threat to kill, were taken into account. 148Insofar as the applicant relied upon his drug history, his remorse and his prospects of rehabilitation, each of these matters were dealt with adequately, in my opinion, by the sentencing judge. I do not consider that there is any error demonstrated in relation to any of these matters that could or did impact upon the sentencing judge's discretion. 149Accordingly, I do not consider that there is any basis for the contention that the sentencing judge overlooked or did not take into account each of these matters when sentencing the applicant. 150The individual sentences imposed and the aggregate total sentence though very substantial, in my opinion, fell within the range of a sound exercise of the sentencing discretion. I am of the opinion that no lesser sentences were warranted in law: s.6(3) of the Criminal Appeal Act . 151Accordingly, I propose the following orders:- (1) An order for the extension of time in which to apply for leave to appeal against sentence be granted. (2) Leave to appeal in respect of the sentences imposed be granted. (3) The appeal be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2011