Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313

1 I have had the advantage of reading in draft the reasons for judgment prepared by Osborn and Priest JJA. I agree with those reasons, and with the orders proposed.

2 I would add only this. Even making due allowance for the negotiations that often take place between the Crown and an accused, which will sometimes result in charges being reduced to a level significantly below what the objective facts seem to warrant, the decision in this case to allow these applicants to plead guilty merely to recklessly causing injury, rather than causing serious injury, is a complete mystery.

3 I would have thought that, on any view, the firing of a shotgun in the direction of Constable Ashmole, resulting in his being struck by 14 shotgun pellets to the head, and leading to the ongoing consequences identified by Osborn and Priest JJA, could not be described as anything other than the infliction of 'serious injury', even within the narrow meaning of that expression now contained in s 15 of the Crimes Act 1958. An injury of that gravity is obviously 'substantial and protracted'. It would be extraordinary if a jury were to find otherwise.

4 Carl Williams, a notorious murderer and drug trafficker, was murdered in Barwon Prison by another inmate, Matthew Johnson, on 19 April 2010. The applicant Sam Liszczak[1] (for convenience, 'Liszczak') was a friend of Carl Williams' killer, and an acquaintance of the applicant, Rodney Phillips[2] ('Phillips').

5 Over a short period in July 2015, Liszczak and Phillips - who had been released from prison only days earlier[3] - embarked on a criminal campaign involving shooting at and fire-bombing premises thought to be occupied by Carl Williams' father, George Williams, and his widow, Roberta Williams. Liszczak and Phillips' criminal escapade - which had as its aim the intimidation of George and Roberta Williams - culminated in their shooting of Constable Benjamin Ashmole, in the course of evading apprehension.

6 Liszczak and Phillips pleaded guilty in the Supreme Court on 15 February 2017, to eight charges contained in three indictments, including reckless conduct endangering serious injury;[4] recklessly causing injury;[5] criminal damage;[6] arson;[7] attempted arson[8] (two charges); theft of a motor vehicle;[9] and being a prohibited person in possession of a firearm.[10] On 14 March 2017, Liszczak was sentenced to a total effective sentence of seven years and 10 months' imprisonment, upon which a non-parole period of six years was fixed; and Phillips was sentenced to a total effective sentence of eight years' imprisonment, with a non-parole period of six years and two months.

7 It is convenient to set out the details of the sentences in tabular form:

9 years and 10 months' imprisonment with 8 year non-parole period

Driver's licence disqualification for 2 years; forfeiture and disposal orders

10 years' imprisonment with 8 year and 2 month non-parole period

Driver's licence disqualification for 2 years; forfeiture and disposal orders

8 Both Liszczak and Phillips seek leave to appeal against the sentences imposed upon them.

1. The learned sentencing judge erred in doubly punishing the applicant in respect of charges 2 (reckless conduct endangering person) and 3 (recklessly cause injury) on Indictment C1510274.A.1.
2. The individual sentences on charges 1, 2 and 3 on Indictment C1510274.A.1, orders for cumulation on charges 1 and 2 on Indictment C1510274.A.1, total effective sentence and non-parole period fixed are each manifestly excessive.

Particulars:

(a) The learned sentencing judge gave too much weight to the circumstances in which the damage arose in respect of charge 1.

(b) The learned sentencing judge gave too much weight to the circumstances of the offences and insufficient weight to the maximum penalties, in respect of charges 2 and 3; and the risk appreciated by the applicant in respect of charge 2.

(c) The learned sentencing judge gave insufficient weight to the factors in mitigation and the principle of totality.

10 Phillips also seeks leave to appeal on two grounds:

• Charges 1, 2, 3 and 4 on Indictment C1510274.A.1;

• Charge 3 on Indictment C1510274.B;

and the orders for cumulation as between those sentences are manifestly excessive, resulting in a head sentence[16] and non-parole period that are also manifestly excessive.

1. The learned sentencing judge erred by doubly punishing the applicant as between charges 2 and 3 on Indictment C1510274.A.1.

11 For the reasons that follow, both applications for leave to appeal should be refused.

12 It is necessary to briefly describe the offending.

13 As we have said, Liszczak was a friend of Matthew Johnson, who murdered Carl Williams. Soon after their release from prison, Liszczak and Phillips sought to intimidate George Williams (now deceased) and Roberta Williams.

14 On 4 July 2015, Phillips borrowed his brother's Hyundai motor car to move some of his belongings from his mother's home in Glenroy to an address in Pascoe Vale. Phillips took a slab of Corona beer and two red plastic five litre fuel containers to the Pascoe Vale premises. He gave the beer to a tenant at those premises and asked that the empty bottles be returned to him.

15 In the morning of 5 July 2015, Liszczak and Phillips drove to a house at an address in Broadmeadows mistakenly thinking it was George Williams' address. (In fact, George Williams lived further along the street.) Using the empty Corona bottles, petrol and pieces of a torn white shirt as a wick, they manufactured two 'Molotov cocktails'. They lit the firebombs and threw them at the house. Not much damage was caused, only soot stains (Indictment C1510274.B, charge 1 - attempted arson).

16 That same morning, at about 6.15 am, the two drove to a house at an address in Essendon wrongly believing it to be the address of Roberta Williams (who in fact lived a few houses away). They manufactured Molotov cocktails and threw them at the residence (Indictment C1510274.B, charge 2 - attempted arson). Some of the firebombs ignited but others did not. Neighbours extinguished the firebombs that did ignite before they did much damage. One of the two red plastic fuel containers was left on the roof of a car parked outside the residence.

17 The next day, 6 July 2015, at about 6.00 pm, Liszczak and Phillips picked up two teenaged females from their homes. They drove to a party and the applicants then left the two females for a short time.

18 Liszczak and Phillips drove to a house in Endeavour Hills and stole a Ford Escape motor vehicle (Indictment C1510274.B, charge 3 - theft). They then drove to a McDonalds restaurant in Endeavour Hills and once more picked up the two females.

19 At about 3.00 am the group of four arrived at the Pascoe Vale premises, where a man was waiting outside the house. The two females were taken to Phillips' bedroom inside the house. Liszczak and Phillips left the house briefly. They then returned to the bedroom, bringing with them a single barrel shotgun. Liszczak and Phillips - both of whom were a 'prohibited person'[17] - each walked around the bedroom with the shotgun before leaving the premises with it (Indictment C1510274.C - prohibited person in possession of a firearm).

20 The applicants, in possession of the shotgun, drove the stolen Ford Escape to the home of George Williams in Broadmeadows. At around 3.15 am on 7 July 2015, they fired two shots from the shotgun at the front fence, causing damage to the letterbox and the fence (Indictment C1510274.A.1, charge 1 - criminal damage). A neighbour who heard the bangs rang the '000' emergency services number.

21 About 10 minutes after the shooting, Constable Benjamin Ashmole - driving a marked police car in which Constable Thomas Wospil[18] was a passenger - saw the Ford Escape drive west along Albion Street, Essendon, past the street where Roberta Williams was living. They followed the Ford Escape to the intersection with Pascoe Vale Road, at which point the Ford drove through a red light and turned right so as to evade them. The police activated the sirens on their vehicle and gave chase. Liszczak and Phillips drove the Ford through the back streets of Essendon without lights and stopped in St Monica's school carpark, at the dead end of Robinson Street, Essendon.

22 Constable Ashmole stopped the police vehicle in the driveway of the school, leaving enough room for the Ford to pass. The Ford turned hard right and drove towards the front of the police car. As it approached, the Ford veered right, so that the passenger side window of the Ford faced the driver side window of the police car. With a clear line of sight, when the two vehicles were about four and a half metres apart, the shot gun was fired directly at Constable Ashmole. Although he ducked, Constable Ashmole was struck by shotgun pellets to the right rear of his head. When the gun was fired, both the driver side window of the police car and the passenger side window of the Ford were down. Constable Ashmole suffered injury from the pellets that had penetrated his head (Indictment C1510274.A.1, charge 3 - recklessly causing injury). Other pellets from the shotgun blast lodged in the driver side headrest of the police car. Although Constable Wospil was put in danger of serious injury by the blast, he was not in fact struck by any of the pellets from the discharged shotgun cartridge (Indictment C1510274.A.1, charge 2 - reckless conduct endangering serious injury).[19]

23 At about 4.00 am, Liszczak and Phillips drove the stolen Ford to the rear of a factory in Coburg and destroyed it by fire (Indictment C1510274.A.1, charge 4 - arson).

24 Constable Ashmole was taken to the Royal Melbourne Hospital for treatment. Of the 14 shotgun pellets lodged in his head, surgeons managed to remove only three. He was off work for six months and still suffers recurring headaches.

25 Liszczak and Phillips were both arrested on 21 July 2015 and gave 'no comment' interviews.

26 Initially, the matter was listed for trial starting on 4 February 2017. After two days of pre-trial argument the matter resolved; and, when re-arraigned, the applicants pleaded guilty to the charges as set out above.

27 In opening, senior counsel for the prosecution informed the judge that the applicants, 'by their plea, agree that they were acting in concert in relation to all of the charges on the indictments'.

28 Senior counsel for Liszczak conceded on the plea that, 'as far as instances of recklessly causing injury and reckless conduct endangering serious injury go', the applicants' offending was 'at the top end'. He submitted that there was 'a very quick decision as to what is to be done to facilitate the escape'. It was 'to a degree, a bit indiscriminate, it is not a deliberate stopping, aiming, firing', there now being no suggestion that that the applicants' vehicle was 'stopped to facilitate a greater degree of accuracy in the shot'. The offending leading up to the shooting of Constable Ashmole had to be viewed in the context of 'intimidation or harassment of the Williams clan', and 'was fairly ineffectual'.

29 Liszczak, counsel submitted, was aged 22 years at the time of the current offending. He was in his mother's care up to the age of eight, when he was taken into State care. Liszczak had little contact with his father. In total, he lived in 17 different foster care homes, from which he regularly absconded. Liszczak is relatively intelligent, although, since he had very little formal education, he is illiterate. Counsel addressed Liszczak's criminal history - which is very significant - in some detail, including his time spent in custody. Liszczak's time in custody, counsel submitted, had been more onerous than usual because of the stringent conditions he lived under. This was in part due to Liszczak's bad behaviour while in prison - he being difficult to manage - 'it's hard to see him ever being placed simply in mainstream'. Counsel said that to 'some degree he brings some of that on himself', but 'the nature of the time he spent inside and the nature of the time that will be expected he'll serve' to some degree 'has to be taken into account'. As to the shooting itself, counsel agreed that 'there's no nomination of one or other as the shooter or as the passenger or as any other thing in particular'. The prosecution case is 'just put on a joint criminality basis' and the judge does not 'nominate one or the other'.

30 With respect to the offences related to the shooting, counsel for Phillips said that he did not 'want to be seen to be quibbling' with Liszczak's counsel's 'concession that they're top end'. He said that he 'would concede ... that they're high, they're certainly high end, as a category', but he did not 'necessarily concede that they are the worst imaginable examples of the offending'. The effect of the other offending was 'little more than nuisance', although 'the firing of the shotgun at George Williams' house is clearly a step up in terms of level of seriousness'.

31 Phillips' counsel submitted that his client was 'getting towards the tail end but the principles for sentencing of youthful offenders still apply to some extent'. It was submitted that the real danger that militates against Phillips' rehabilitation was that he is at a risk of institutionalisation, having spent his youth in prison. Counsel told the judge that between the ages of 17 and 25 Phillips had spent all but five months in custody, and he provided a breakdown of his client's previous offending and time spent in prison. It was submitted that Phillips' time in prison had been more onerous due to the harsh conditions he had been under.

32 Counsel for Phillips further submitted that, although the plea of guilty was late, it had utilitarian benefit. Specifically with respect to remorse, counsel submitted that 'there's been no attempt by either of these men to identify the roles played, just to accept that they're to be dealt with as both involved, so we still are unclear as to who the shooter was, who the driver was in relation to the matter and they've taken the stance which is perhaps inconsistent with the full extent of remorse, if I can put it that way'.

Double punishment? Liszczak's ground 1; Phillips' ground 2

33 Under cover of his first ground, Liszczak's counsel submitted that, with respect to the charge of reckless conduct endangering serious injury, charge 2, and the charge of recklessly causing injury, charge 3, the act common to both offences was the discharge of the shotgun, by either Liszczak or Phillips, into the police car. It was submitted that the principles relating to double punishment therefore were applicable.

34 Relying on s 51 of the Interpretation of Legislation Act 1984, Liszczak's counsel submitted that the law 'prohibits an offender from being punished twice for the same act or omission'. And it was submitted that the common law position with respect to double punishment and sentencing is that 'persons found guilty of two offences must not be punished twice for an act which is common to the two offences.'[20] It was acknowledged that 'the specific legal elements differ between reckless conduct endangering persons and recklessly causing injury'. The 'common factor', however, is 'the discharge of the firearm'. The substantive act of unlawful violence constituting charge 3 was, so it was argued, also the unlawful act that endangered serious injury that is the essence of charge 2. Furthermore, the mental element for both offences is recklessness. Thus, whilst the distinguishing features of the two offences - separate victims and injury occurring only on charge 3 - 'provide a basis for some cumulation', it was submitted that the sentencing judge 'failed to limit such cumulation in order to avoid double punishment'.

35 Phillips' second ground of appeal was also the foundation of a submission concerning claimed double punishment, it being asserted that Phillips too was doubly punished with respect to the charge of reckless conduct endangering serious injury and that of recklessly causing injury.

36 Orally, counsel for Phillips adopted the submissions made by Liszczak's counsel concerning double punishment. Counsel for Phillips submitted that the two charges flowed from the single act of firing the shotgun once. That single act caused injury to one victim, Constable Ashmole, and placed another, Constable Wospil, in danger of serious injury. It was submitted that although these were 'two consequences that provide the foundation for two separate charges', 'the physical act is common to both charges, and the mental element is almost identical in both charges'. Sentencing the applicant to 80 per cent of the maximum penalty for each of these two charges, it was submitted, constituted double punishment.[21]

37 The contention that the applicants were doubly punished cannot be upheld.

38 Section 51 of the Interpretation of Legislation Act 1984 provides that where an act (or omission) constitutes an offence under two or more laws, an offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act (or omission).[22]

39 The common law position was set out in Pearce, in which the High Court concluded that the appellant had been subjected to double punishment, in circumstances where he was convicted and sentenced for both malicious infliction of grievous bodily harm, and breaking and entering a dwelling-house and inflicting grievous bodily harm therein. McHugh, Hayne and Callinan JJ observed:[23]

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

In the present case we need not decide whether this result is properly to be characterised as good sentencing practice or as a positive rule of law. There is nothing in s 33 or 110 of the Crimes Act more generally which suggests that Parliament intended that an offender such as the appellant should be twice punished for his inflicting grievous bodily harm on his victim. Nor do we consider that any such intention can be gathered from s 57 of the Interpretation Act 1987 (NSW). As stated above, that section merely supplements and does not supplant the practice or rule with which we now deal.

It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics.

40 In Bradley[24] - a case cited by the respondent - a jury convicted the applicant of a charge of reckless conduct endangering life and a charge of intentionally causing injury. Both charges related to the same victim, a police officer, and both were founded on the same conduct, in that the applicant pulled out a gun and fired five shots in the direction of the victim (who suffered an injury from one of the shots). On appeal, the court concluded that the conduct which supported the charge of intentionally causing injury was the very same conduct which supported the charge of reckless conduct endangering life, so that the applicant should not have been convicted of both charges. There was but a single physical act - the firing of the gun. Hence, the conviction on the charge of reckless conduct endangering life was set aside.[25] Bradley does not much assist with the resolution of the present case, however, since - unlike the instant case - Bradley concerned separate endangerment and injury charges relating to a single victim.

41 The principles relating to double punishment were also discussed in Lecornu, a case in which the appellant was convicted and sentenced for both child pornography offences and breaches of an extended supervision order under the Serious Sex Offenders Monitoring Act 2005 ('the Monitoring Act'). The conduct in each case giving rise to the two child pornography offences was the same conduct which gave rise to the corresponding two breach offences. Maxwell P (with whom Hollingworth and Cavanough AJJA agreed) considered the effect of s 51, and considered a number of authorities on the topic. A submission that the rule against double punishment had been infringed - both at common law and under s 51 - failed, however, the court holding that the legislature plainly had contemplated that, where a relevant condition of the Monitoring Act was breached, two distinct offences would have been committed.[26]

42 In this case, the principal focus must be on the 'act' relevant to each charge said to constitute the offence. If the act - the firing of the shotgun - constituted an offence under two (or more) laws then it was open to prosecute and punish the applicants under those two (or more) laws, so long as they were not punished twice for the same act that is common to both charges. In circumstances where charges 2 and 3 overlap, it would have been wrong to punish the applicants twice for conduct falling into that area of overlap. Determination of that issue must be approached as a matter of common sense, not semantics,[27] and should not be attended by 'excessive subtleties and refinements'.[28]

43 Charge 3 - recklessly causing injury - and charge 2 - reckless conduct endangering serious injury - plainly have different elements, and relate to different victims. As has been said, Constable Ashmole was the victim in charge 3, he being struck in the head and injured by pellets from the shotgun blast, whilst Constable Wospil was the victim in charge 2, it only being a matter of good fortune that he was not struck and injured by other pellets from the shotgun blast fired at the police vehicle. The charge of recklessly causing injury required that the applicants foresaw that injury would probably result when firing the shotgun;[29] whereas, for the charge of reckless conduct endangering serious injury, it was necessary that, when they fired the gun, the applicants did so recklessly, in the sense that they foresaw that placing another in danger of death was a probable consequence of their conduct, and a reasonable person in their position, engaging in firing the shotgun in the same circumstances, would have realised that they had placed another in danger of serious injury.[30] Thus, although from one perspective there was but a single action - firing the shotgun - from the law's perspective the applicants committed two separate criminal acts against each of Constable Ashmole and Constable Wospil, in that they breached the distinct legal obligations imposed by the two distinct offences.

44 The firing of the gun at the police vehicle was done in circumstances where it contained two occupants, Constable Ashmole, the driver, and Constable Wospil, the passenger. By their pleas, the applicants admitted that the single act of firing the shotgun was done with differing reckless intents - founding the elements of different offences - which resulted in there being two victims. In those circumstances, the judge was correct to recognise the overlap between the two offences, and to give practical effect to that overlap by permitting significant concurrency between the sentences on each charge. In so far as the offences did not overlap, the judge was entitled - if not bound - to give effect to that fact by an appropriate measure of cumulation between the sentences imposed. This the judge did.

45 Liszczak's ground 1, and Phillips' ground 2, cannot be upheld.

Manifestly excessive sentence? Liszczak's ground 2; Phillips' ground 1

46 Ground 2 of Liszczak's application asserts that the individual sentences on charges 1, 2 and 3 on Indictment C1510274.A.1 - criminal damage, reckless conduct endangering serious injury and recklessly causing injury - are manifestly excessive, as are the orders for cumulation between charges 1 and 2, the total effective sentence and non-parole period.

47 Counsel for Liszczak submitted that, although the manner in which the property damage on charge 1 arose was serious - firing two shots from the shotgun at George Williams' front fence, causing damage to the letterbox and the fence - in that it was carried out with a firearm, nonetheless the level of damage caused was relatively minor. Thus, so it was submitted, the sentence of 18 months' imprisonment on charge 1 - eight months of the sentence being cumulated on the base sentence - is manifestly excessive. In order to make good the submission that the sentence for criminal damage was excessive, in oral submissions counsel sought to draw a parallel with the sentences imposed on the two charges of attempted arson (charges 1 and 2 on Indictment C1510274.B).

48 As to charges 2 and 3 - reckless conduct endangering serious injury and recklessly causing injury - it was conceded by counsel on the plea that the offending on these two charges falls at the top end. It was conceded that 'the use of a firearm at close range makes it necessarily so'. It was submitted, however, that the agreed facts were that the Ford Escape did not slow or stop in order to fire the shot at the police car; that the shot occurred in circumstances where Liszczak and Phillips were trying to evade police; that the cars were at an angle to each other; and that the incident occurred over the course of seconds. It was not the case, so it was submitted, that Liszczak and Phillips followed, chased or specifically targeted the two victims. The conduct on charges 2 and 3 'arose spontaneously, albeit as an extension of their conduct at the Williams' home'. Against that background, it was submitted that the sentencing judge placed too much weight on the applicants' appreciation of risk when he found that the applicants 'must have foreseen that an appreciable risk of serious injury to the passenger was a highly probable consequence of their conduct'.

49 It was further submitted that, in circumstances where the maximum penalty on both charges 2 and 3 is five years' imprisonment, since the sentences imposed equate to 80 per cent of the available maximum, 'the sentences imposed on charges 2 and 3 are unusual, even when categorised at top end'. Moreover, it was submitted that, having regard to all of the circumstances and aggravating features, the individual sentences and order for cumulation are excessive, particularly given the 'commonality in conduct' between the two charges and the fact that Liszczak pleaded guilty.

50 Ground 1 of Phillips' application claims that the individual sentences on charges 1, 2, 3 and 4 on Indictment C1510274.A.1 - criminal damage, reckless conduct endangering serious injury, recklessly causing injury and arson - and on charge 3 on Indictment C1510274.B - theft of motor vehicle - are manifestly excessive, as are the orders for cumulation between those sentences, resulting in a total effective sentence and non-parole period that are manifestly excessive. In oral argument, however, Phillips' counsel concentrated upon the sentences imposed on charges 2 and 3, and, whilst accepting that there needed to be some measure of cumulation between the two - there were two people in the police vehicle so there are two victims - submitted that cumulation amounting to fifty per cent of the individual sentences was manifestly excessive. Moreover, so it was submitted, the length of the non-parole period is 77 per cent of the length of the total effective sentence, and ought be viewed as manifestly excessive for that reason.

51 We reject the contention that the sentences for recklessly causing injury and for recklessly endangering serious injury - representing, as they do in each case, a sentence equivalent to 80 per cent of the available maximum - are manifestly excessive.

52 Absent recent amendments to s 15 of the Crimes Act 1958, whereby 'serious injury' was given a somewhat narrow definition, one would have had little doubt that, as a matter of ordinary language, the injury suffered by Constable Ashmole was indeed serious. Prior to 1 July 2013, the definition of serious injury was inclusive.[31] As a result of an amendment effected by the Crimes Amendment (Gross Violence Offences) Act 2013, however, for offences committed after 1 July 2013, the definition of serious injury is exclusive, so that a 'serious injury' is 'an injury (including the cumulative effect of more than one injury) that ... endangers life; or ... is substantial and protracted'.

53 It must be accepted for the purposes of the present applications that the injury suffered by Constable Ashmole cannot be regarded as 'serious injury' as now defined (although, we must say, absent the prosecution's acceptance of the applicants' plea to, and their conviction for, a charge alleging simple 'injury', we would have had no hesitation in concluding that the injury to Constable Ashmole was 'serious injury', given that it is 'substantial and protracted'). That said, however, the instant example of the offence of recklessly causing injury must be seen as being either in, or very close to, the worst category of the offence.[32] By that we mean that the present example of the offence - taking into account both the nature of the offence and the applicants' circumstances - is so grave as to warrant the imposition of a sentence at, or, at least, very close to, the statutorily prescribed maximum penalty.[33]

54 To that extent, the seriousness of the offence must be gauged not only by the injury itself, but also the method by which it was occasioned. To fire a loaded shotgun in the direction of any person - let alone police - knowing that firing the shot will likely cause injury, is an extremely serious example of the offence. Moreover, although the Court is constrained to accept that the physical injury caused to Constable Ashmole does not qualify as 'serious injury' (as now defined), it was far from trivial. Indeed, the injury was severe, and must be seen as being a grave example of simple injury, which by a whisker fails to cross into the realm of 'serious injury' as that term must now be understood. Furthermore, that the applicants displayed serious violence towards the victims cognisant of the fact that they were police doing their duty, constitutes a significant circumstance of aggravation. That police were the targets of their violence increases the moral culpability of the applicants' offending, and underscores the need for the sentence imposed to reflect a large measure of general and specific deterrence. As Buchanan JA said in Arvanitidis:[34]

It is clear that generally it is an aggravating circumstance that the victim of a physical attack is a police officer acting in the execution of his or her duty.[35] The purpose of sentencing offenders more severely because their victims are police officers is to deter others and thereby protect the police. In R v McCormack,[36] the Full Court said:

Because the duty of the police to maintain the law and to protect the community from unlawful conduct exposes them to attack, courts have commonly regarded an attack on the police in the execution of their duty as calling for a custodial sentence with a deterrent component.[37]

It is a serious offence to assault police officers in the execution of their duty ordinarily requiring a significant element of deterrence in the sentences to be imposed. The courage of police officers in protecting lives and property is something upon which the community depends. It is incumbent on the Court to impose appropriate sentences to demonstrate support for the authority of police officers who undertake a difficult, and dangerous task in the execution of their duties in maintaining law and order. ... Where the offender knows or ought to have known that the victim was discharging a public duty of this sort, a more severe sentence will usually be imposed to deter such persons from violent assaults on them when performing their duties. ...

55 For similar reasons, the applicants' offence of reckless conduct endangering serious injury, must be viewed as an extremely serious example of that offence, calling for the imposition of a very stern sentence. As the sentencing judge observed, in circumstances where police had left enough room for the applicants to drive away 'if that was their inclination', to 'have fired at all in those circumstances was simply gratuitous, nasty and disturbing'.

56 Finally, so far as the seriousness of the offences involving the two police officers is concerned, the significant impact of the applicants' crimes upon them must be recognised. Having read the victim impact statements of both Constable Ashmole and Constable Wospil, the judge said that 'as would be expected, these crimes have had a profound effect on both young police officers'. That shorthand description of the impact of Liszczak's and Phillips' crimes upon their victims is entirely apt.

57 Against that background, there was not much by way of mitigation.

58 The pleas of guilty were not accompanied by any shred of remorse. And they were late coming. Despite their lateness, however, the judge thought that 'given their utilitarian value, the pleas of guilty remain the most significant mitigating factor in each case'.

59 But beyond the pleas of guilty (and their utilitarian value) we see nothing else that mitigates the applicants' offending in any meaningful way. Counsel for each relied on their relative youth. Given the relative seriousness of the applicants' offending, however, their suggested youth could have very little bearing on the sentences imposed upon them.

60 Indeed, despite their suggested youth, both have amassed an appalling array of prior convictions. It is unnecessary to set them out in full. Liszczak's criminal history commences with dishonesty offences in 2007 when he was aged 13, and thereafter includes multiple offences of armed robbery, robbery, intentionally causing injury, recklessly causing injury, assault with a weapon, reckless conduct endangering life, threatening to cause serious injury, arson, property damage, burglary, theft, weapons and a host of other offences. Phillips' offending commenced at age 18. The sentencing judge said that Phillips' criminal history 'makes for depressing reading'. He has multiple convictions for crimes of violence, including a sentence of four years' imprisonment imposed in the Supreme Court in March 2010, for intentionally causing serious injury and intentionally causing injury. He also has convictions for arson, damaging property, affray and weapons offences. It is no exaggeration to say that both applicants appear to be incorrigible. The sentencing judge observed - we think somewhat optimistically - that 'each man's prospects of rehabilitation are guarded - and at best fair - on a scale of excellent, very good, good, reasonable, fair, guarded, poor and hopeless'. With respect, notwithstanding their ages, we would regard the applicants' prospects of rehabilitation as extremely poor.

61 As earlier indicated, counsel for Liszczak - in a submission adopted by Phillips' counsel - contended that the sentence of 18 months' imprisonment on the charge of damaging property (by firing two shots from the shotgun at George Williams' front fence), eight months of that sentence being cumulated on the base sentence, is manifestly excessive. So as to make good that submission, counsel sought to compare the sentences imposed on the two charges of attempted arson (charges 1 and 2 on Indictment C1510274.B) - five months' and six months' imprisonment respectively - with the sentence of 18 months on charge 1.

62 That contention is not persuasive, since we regard the sentences imposed on the two charges of attempted arson to be inadequate. In his sentencing reasons, the judge said that the 'attempts at arson - by throwing Molotov cocktails - were towards the lower end on a scale of seriousness for this type of offending'. His Honour said that neither attempt 'was ever likely to cause any serious damage', and although 'there was presumably some sort of sinister warning intended by the behaviour, neither offence involved any actual or threatened violence to others'. With respect, the seriousness with which the completed offence of arson is to be gauged is dictated only partially by the extent of damage caused, or by the value of the property destroyed or damaged. The method by which the arson is accomplished also dictates its objective seriousness. Winneke P made some observations in Ralph,[39] which conveniently may be adopted (and adapted) for present purposes:[40]

Arson is a serious crime in this State's calendar, which not only has the capacity to severely impact upon the sense of security of its immediate victims, as occurred in this case, but also is destructive of the sense of safety and security of those who are indirectly affected by it, as likewise in this case were the neighbours. This crime was, I think, a serious example of its type. It was committed for no better reason than to exact revenge ...

63 In the instant case, the attempted arsons were premeditated. Phillips specifically asked that empty beer bottles be preserved, so that they could be used as firebombs. The applicants filled the bottles with petrol and manufactured wicks to ignite it. They then threw their makeshift bombs at residential premises with the intent of damaging those premises, and so as to instil fear in the occupants (albeit that through their own incompetence they threw the Molotov cocktails at premises occupied by persons other than their intended victims). The applicants must have known that people other than their intended victims - other residents in other nearby homes - would also likely be terrified by their actions. Their conduct was outrageous. Rather than being 'towards the lower end on a scale of seriousness for this type of offending', we regard the two attempted arsons as being very serious examples of the offence. Sentences of significantly greater severity would have been justified for these offences. The sentences imposed provide no assistance in assessing the adequacy or otherwise of the sentence on the charge of criminal damage, which, having regard to the circumstances of its commission, we regard as lenient.

64 As earlier indicated, counsel for Phillips also submitted that the sentence of 12 months' imprisonment for theft of the motor car was manifestly excessive. We need not dwell too long on that submission. The individual sentence imposed plainly was within the range of sentences open in the proper exercise of the sentencing discretion, and the degree of cumulation ordered was very moderate. We would add only that it appears to us that current sentencing practices for theft of motor cars generally contemplates a range of sentences that is far too low; but, given that no submissions were made directed to the topic of current sentencing practices, we need say no more on the subject.

65 So far as totality and the length of the total effective sentences are concerned, we should observe that the sentence imposed on the charge of being a prohibited person in possession of a firearm - 12 months' imprisonment - was inadequate. It should not be thought in future that a sentence of that order generally is appropriate, particularly for offenders with the kind of appalling criminal histories of Liszczak and Phillips. A far more severe individual sentence was needed for the firearms offence, with a measure of cumulation for the possession of the shotgun unconnected with its actual use.[41] That being so, more severe total effective sentences might well have been justified.

66 Finally, the non-parole periods imposed are unremarkable. Phillips' counsel submitted that a non-parole period equating to 77 per cent of the length of the total effective sentence is excessive. It is not. We note that he was released on parole on 19 July 2012, only to be returned to prison after his parole was cancelled on 21 November 2012. His previous failure to abide by the conditions of parole was relevant to fixing the length of the non-parole period on this occasion.

67 Liszczak's and Phillips' claims that the sentences imposed upon them are manifestly excessive are bereft of merit. Their applications for leave to appeal against sentence must be refused.

[1] Liszczak was born on 7 July 1993, and is now aged 24 years.

[2] Although the filed Criminal Record, signed by a Crown Prosecutor, recorded Phillips' date of birth as being 8 November 1990, at the time of arraignment the Associate recorded Phillips' date of birth as being 19 August 1991; and in the course of his counsel's plea, Phillips interrupted to say that he was one of twins, and that he and his twin were born on 19 August 1991. Counsel for the respondent in this Court conceded that date to be his correct date of birth. Hence, Phillips was aged just short of 24 years at the time of offending, and was 25 when sentenced.

[3] Phillips was released on 2 July 2015, and Liszczak was released on 4 July 2015.

[4] Crimes Act 1958, s 23. The maximum penalty is 5 years' imprisonment.

[5] Crimes Act 1958, s 18. The maximum penalty is 5 years' imprisonment.

[6] Crimes Act 1958, s 197(1). The maximum penalty is 10 years' imprisonment.

[7] Crimes Act 1958, ss 197(1) and (6). The maximum penalty is 15 years' imprisonment.

[8] Crimes Act 1958, ss 197(1) and (6), 321M. The maximum penalty is 10 years' imprisonment (see s 321P of the Crimes Act 1958).

[9] Crimes Act 1958, s 74(1). The maximum penalty is 10 years' imprisonment.

[10] Firearms Act 1996, s 5(1). The maximum penalty is 10 years' imprisonment (or 1200 penalty units).