Pound v R

Court of Criminal Appeal (NSW)|2015-03-27|Before: Hulme J, Davies J, Bellew J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/334852 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Law Date of Decision: 13 November 2013 Before: Norrish DCJ File Number(s): 2012/334852

Judgment

R A HULME J: I agree with Davies J.
DAVIES J: On 9 April 2013 the Applicant pleaded guilty in the Local Court to two offences as follows: Count 1: Recklessly inflict grievous bodily harm. The maximum penalty for this offence is ten years imprisonment and there is a standard non-parole period of four years. Count 2: Carry firearm with disregard for the safety of himself and another. The maximum penalty for this offence is ten years imprisonment.

Facts

The following facts are summarised from the Crown's Statement of Facts tendered at the sentencing hearing. The Sentencing Judge noted from hearing the evidence of the Applicant at the sentencing hearing that the facts were effectively an agreed Statement of Facts.
The Applicant resided at a Department of Housing unit in Alice Street, Newtown. The victim of the offences was Daniel Marino. Mr Marino's father resided in the same block of flats as the Applicant.
On 19 October 2012 the victim and three associates attended King Cross for a social night. They consumed alcohol and two of the group consumed an ecstasy tablet at around 10:00pm.
At about 3:00am the following morning the victim and his friends left Kings Cross intending to return to the victim's father's unit to sleep. They expected the unit to be vacant. The victim's father was home so the group decided to leave. As they were leaving the Applicant heard them. He knew the victim previously. The Applicant invited the victim and his three friends to his unit.
The victim and his three friends walked into the unit and sat down. One of the group, Ben Mcarthy, went to the toilet. While he was in the toilet the Applicant produced a .22 calibre Harrington & Richardson 7 shot revolver. He began to spin the handgun around his finger using what is suspected to be the trigger guard. This appears not to have been done to threaten the group. After a brief period the Applicant stopped spinning the firearm and he put the gun in his pants.
The victim at some point sat on the lounge occupied by the Applicant. The Applicant told him to move. The two began to taunt one another in a jovial fashion. At this point, the Applicant produced the gun and held it with his finger on the trigger. The victim said "don't point that thing at me" and he tapped the barrel with his two fingers. At this point, the firearm discharged with the projectile striking the victim in the left eye and continuing its path until it stopped in behind the right eye.
It is not alleged that the Applicant deliberately shot the victim. Panicking, the group along with the Applicant left the unit and made their way outside to the main building entrance.
Once outside the unit complex the Applicant using his own mobile phone contacted '000' at 03:43 am and requested an ambulance indicating "I've shot my friend in the eye with a gun". Awoken by the commotion the father of the victim left his unit and joined the group. The victim's friends identified the Applicant as having shot his son.
The victim was walked down the stairs by the group and out onto Alice Street awaiting the ambulance. He was later conveyed to the Royal Prince Alfred Hospital. His injuries resulted in a loss of sight in his left eye and partial blindness in his right eye. The firearm's projectile entered the victim slightly above his left eye, leaving parts of the projectile behind both eyes as it fragmented.
A police search of the crime scene revealed blood spatter on the far side of the lounge room on the coffee table, lounge, floor and window. Blood spatter was also located upon two of the three witnesses' T-shirts. No firearm or firearm related items were located inside or in the vicinity of the unit.
Also located within the spare bedroom were six cannabis plants in the spare bedroom. Evidence of cultivation was identified in the form of fluorescent lighting, potting, watering, concealment and manual aids. The Applicant resides at the address alone and exclusive possession of the cannabis was not in dispute. This was the basis of the Form 1 offence.
The police continued to investigate the location of the weapon involved in this offence. The Applicant told them that one of the other members of the group, Goncalves, had the gun. Although he initially denied knowing where the gun was, Goncalves subsequently informed police that he had possession of the pistol which he produced to them. He provided an additional statement that day alleging that, after shooting the victim, the Applicant dropped the gun. Goncalves then picked up the gun, ran down the stairs and out of the unit complex. He ran to a large tree and buried the gun underneath a pile of leaves.
On 26 October 2012 the Applicant presented himself to the Newtown Police. He was placed under arrest and taken into custody. The Applicant declined to participate in an ERISP. He was then charged with the matters for which he was sentenced.
In his evidence the Applicant accepted that he was intoxicated at the time of the shooting, having drunk three to four long necks of beer from about 11pm. He said everyone present was drunk and had taken "a lot of drugs as well".
He gave evidence that he had found the gun some years before, in about 2007, when in the course of his job with the Local Council he was cleaning up an area near the Cooks River in Tempe. He put it in a tool box and re-found it about five years later in June 2012. He agreed that he had put a bullet in it two days before the incident but he said he did not realise it was still in there. He thought he had taken it out. He thought he had loaded it because he was going to try to use the gun. He said he had some bullets for about ten years.
It was accepted that he did not have a licence to possess the gun.
The victim underwent an operation on 20 October 2012 on his eyes. He is permanently blind in the left eye. The eye is wasted, sunken and deviated downwards with restricted movements. He has a droopy left eyelid. The bullet remains near the optic nerve behind his right eye and cannot be removed because of danger to the brain and vision in the right eye. The victim has suffered nasal problems and has been badly psychologically affected. All of these matters have meant he could not continue with his apprenticeship including his studies at TAFE.

Subjective matters

The Applicant was aged almost 32 at the time of the incident. He had a criminal record which commenced when he was 12 years of age. The offences were largely property offences and offences of a reasonably low level nature although there were offences before his 18th birthday of possessing an unauthorised firearm and possessing ammunition without a licence. He had been imprisoned once as an adult in 2006 for nine months for an assault occasioning actual bodily harm.
His father left the family suddenly when the Applicant was four years of age. This occurred because his mother discovered that the father had been assaulting her daughter from a previous marriage for some years with the Applicant as a witness to those assaults. His mother said that the Applicant only found out the truth of those matters when he was aged about 13 years. It was at that time that his behaviour deteriorated and he developed drug, alcohol and anger management issues. He blamed himself for not being able to stop the abuse.
He left school after completing Year 6 at the age of 12 years. He had employment history of short term casual positions in the area of gardening and bar work. It was during that period that many of the petty offences were committed. He eventually secured a casual full-time position with the Local Council doing landscaping and lawn mowing work but was made redundant after two years. It seems likely that it was during that time that he found the weapon in 2007.
He was granted a disability support pension in 2010 for mental health issues.
He started drinking alcohol at the age of 14 or 15 years and soon became a heavy drinker consuming alcohol on five or six days of the week. He told the Community Corrections Officer who prepared the Pre-Sentence Report that he would drink up to 20 beers or a bottle of bourbon at a session.
He started using cannabis at the age of 15 years and continued to do so up until his arrest. He said he was a heavy user with the drug costing him about $300 per week. He said he also smoked heroin and ecstasy in the past. He started using ice in recent years and until a month before his arrest. He said he could not really afford the drug so he did not become a heavy user.
He said that the cannabis plants were being grown for his personal use. He told the Community Corrections Officer that he had been drinking and using cannabis on the day of the incident.
The Sentencing Judge had a lengthy report from Dr John Jacmon, a consultant psychologist. Dr Jacmon said that the Applicant's day to day functioning was being impaired by clinically significant Bipolar Disorder Type II, and anxiety. Dr Jacmon said that at the time surrounding the incident the Applicant appeared to be undergoing a depressive episode. As the Sentencing Judge noted, there was no psychiatric report providing a diagnosis of the Applicant's mental problems.
The Sentencing Judge also had a report from another organisation disclosing that the Applicant had a potentially serious health problem which required medication and monitoring.

Remarks on Sentence

The Sentencing Judge dealt first with the facts and then the Applicant's subjective matters. He summarised the submissions made and then noted that he was required to consider the totality of the criminality, bearing in mind the matter on the Form 1, and to consider appropriate degrees of concurrency and accumulation.
His Honour then said this: In the context of the submissions that have been made and of course the evidence in this case, including importantly the statement of facts prepared by the prosecution and accepted by the accused, it is clear that the offence of reckless infliction of grievous bodily harm is a very serious offence of this type. Firstly, in dealing with the recklessness revealed in the facts and the offender's own evidence, that was a high degree. The offender, of course, did not intend to cause harm to the victim, nor wish harm to him. However, at the time he acted oblivious to the presence of a projectile in the firearm that he had placed there, the handling of the gun in circumstances where he was intoxicated, reveals a high degree of recklessness. The prior loading of the firearm, obviously, for no understandable reason, and then forgetting that the firearm was loaded also represents a high degree of recklessness on the part of the offender. This was not a case of inadvertence or negligence or mere oversight. He produced the firearm, he had loaded the firearm, albeit some period of time before, it was pointed at the victim and it was obviously inappropriately handled, with his hand in the vicinity of the trigger mechanism. … … It is quite clear though that the recklessness, as I have said, was a very high degree. Obviously the grievous bodily harm is also of a very high degree. The victim has been permanently disfigured. He has lost the sight of one eye with the risk of potential further damage to his other eye, in the circumstances outlined in the facts. … Ultimately, I have concluded that the principal offence is not the worst case committed by the worst offender but it is a very serious offence of its type given the character of the recklessness and the catastrophic effects and consequences of that recklessness.
His Honour also found that there was nothing in the evidence to suggest that the Applicant's production of the firearm at risk to the victim and others including himself was in the course of an act of self-destruction or a manic state or related in any way to a depressive condition.
His Honour held that it might be that his excessive drinking was related to the matters and it might be that there was, in that way, an indirect connection with the events in question but there was no direct causal connection.
His Honour held that although his criminal history did not entitle him to any leniency he could not find that it was an aggravating factor. His Honour said he could not conclude that the Applicant was unlikely to re-offend or that he had good prospects for rehabilitation. His Honour was satisfied, however, that the Applicant had shown remorse by accepting responsibility for his actions.
His Honour afforded him a 25% discount for the early plea and determined that there were special circumstances being the need for the Applicant to have professional assistance to adjust to community living so that an extended period of supervision was needed to address the matters in the Pre-Sentence Report and in Dr Jacmon's report.

Ground 1: Determining that the conduct revealed a high degree of recklessness

The Applicant submitted that the mental element of the offence required at a minimum the contemplation by the offender of the possibility of actual bodily harm and proceeding to do the relevant act nevertheless. The Applicant pointed to the passage in the Sentencing Judge's Remarks set out at [33] above and submitted that the fact that the Sentencing Judge accepted that the Applicant "acted oblivious to the presence of a projectile in the firearm" and had forgotten that the "firearm was loaded" can only be consistent with the proposition that at the time of the production, handling and discharge of the gun the Applicant did not know it was loaded. The Applicant submitted that as a result he could not have contemplated as a possible incident the discharge of that firearm and, consequently, grievous bodily harm being occasioned to anyone including the victim.
Accordingly, the Applicant submitted, the plea of guilty and the acceptance by the Judge of the Applicant's evidence that he did not know the gun was loaded meant that the only finding available was that the Applicant had contemplated actual bodily harm by the production and handling of the gun. In that way the recklessness was not of a high degree.
I do not accept these submissions of the Applicant.
Reliance on references to being "oblivious" and "forgetting that the firearm was loaded" is a failure to read the Remarks as a whole. The observation that the Applicant was oblivious is not an exculpatory statement. The Sentencing Judge made clear that part of the high degree of recklessness was the prior loading of the firearm and the forgetting that it was loaded. That, coupled with his intoxication and the way he behaved with the gun in the presence of the victim, together constitute the high degree of recklessness.
This was emphasised when the Sentencing Judge was detailing the Crown's submissions. He said: Further, the offender had put a bullet in the firearm and forgotten about it, on his version, and was handling a firearm when he was intoxicated, which was an extremely dangerous situation. That is clearly correct in this case.
The finding by the Sentencing Judge of a high degree of recklessness is a factual matter for the Sentencing Judge's determination: Mulato v R [2006] NSWCCA 282 at [37] and [46]. The Applicant would need to show that the finding was not reasonably open to his Honour on the facts. In my opinion, no error is shown because the finding was open to him for the reasons given above. In circumstances where the Applicant knew that he had loaded the gun some days before but carried out the acts of pointing the gun at the victim with his finger on the trigger whilst intoxicated without checking first whether the gun remained loaded only highlights the degree of recklessness involved.
I would reject this ground.

Grounds 2 and 3: The accumulation of the sentences

The Sentencing Judge accumulated the sentence for the offence of recklessly causing grievous bodily harm by a period of 18 months on the sentence for the firearm offence. The Applicant submitted that the two sentences should not have been accumulated at all or at least that the accumulation was too great. Whilst the Applicant accepted that the elements of each offence were different to a degree, the Applicant said that in the present case the essential offending was the same for both offences. The Applicant submitted that the possession of the gun for a period of time before the commission of the offence was not relevant to the decision whether or not to accumulate the sentences.
The Crown submitted that no error of a House v The King (1936) 55 CLR 499 at 505 type had been identified. Further, the Crown submitted that the total effective sentence was consistent with the application of the principle of totality.
The Crown submitted that the acts associated with each offence were not entirely the same. The Crown submitted that his Honour was conscious of the distinct criminality of the two offences because he said: Of course, it is to be borne in mind that the use of the weapon is, in a general sense an element of the related offence for which a sentence must be imposed which will be partly concurrent and accumulative of the principal offence.
In the Crown's written submissions reliance was placed on the possession of the firearm illegally for five years, and the Sentencing Judge's remarks that the offence was the culmination of continuing criminality. In oral submissions, however, the Crown accepted that the only relevant period prior to the day of the shooting was the period from the day the Applicant put the bullet into the gun.
As noted earlier, his Honour said that he was required to consider the totality of the criminality and matters of concurrency and accumulation if appropriate. His Honour did not address directly the issue of the overlap of the elements of each of the offences in the circumstances of this case. However, in the course of considering aggravating factors for the offence of recklessly causing grievous bodily harm his Honour said: Of course, it is to be borne in mind that the use of the weapon is in a general sense an element of the related offence for which a sentence must be imposed which will be partly concurrent and accumulative of the principal offence as the pleadings of that matter made clear. A further aggravating factor in relation to the offence of recklessly inflict grievous bodily harm was that it was an offence committed without regard for public safety.
His Honour was correct to say that the use of the weapon was an element of the firearm offence but so, too, was the fact that the grievous bodily harm offence was committed without regard for public safety. Whilst the use of a gun is not an element of the offence of recklessly causing grievous bodily harm, that was the way the grievous bodily harm was in fact inflicted in the present case. Further, the firearm offence could be proved by showing that the Applicant had a reckless disregard for the safety of himself or any other person.
Although it was a relevant matter that the Applicant had placed a bullet into the gun two days previously and had forgotten that he had done so, the recklessness that was involved in his behaviour generally could be demonstrated by showing that he pointed the gun at the victim with his finger on the trigger whilst he was intoxicated and without ensuring at the least that the gun was not loaded regardless of what had occurred two days previously.
In those circumstances, the offence of recklessly causing grievous bodily harm wholly comprehended the elements of the firearm offence.
In Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Howie J (with whom Adams and Price JJ agreed) said: [27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly 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. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.
In those circumstances and bearing in mind that questions of concurrency or accumulation are discretionary matters (R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7] and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26]) error is demonstrated because an accumulation of 18 months was plainly unreasonable and unjust: House v The King.
I would uphold these grounds.

Section 6(3) Criminal Appeal Act (1912) NSW

Since error has been demonstrated it is the duty of this Court to re-exercise the discretion to sentence the applicant bearing in mind the provisions of s 6(3) of the Act: Kentwell v The Queen [2014] HCA 37; (2014) 88 ALJR 947 at [42]. Because the error in the present case concerned accumulation it is necessary also to consider s 7(1A) of the Act. In that way it becomes unnecessary to consider Ground 4 of the appeal, that the sentence is manifestly excessive. Nevertheless, the submissions made in relation to Ground 4 are relevant to the resentencing process and will be referred to in the terms in which they were made in that context.
The Applicant submitted that the individual sentences and the total effective sentence were manifestly excessive bearing in mind the Applicant's subjective case including his health issues, the overlap of the offences, the discount for the plea, and both the assistance he provided and his remorse. The Applicant said that the notional starting point for each of the offences was 8 years and for the total effective sentence was 10 years.
The Applicant read an affidavit detailing his progress whilst in custody. He has completed the SMART Recovery program in July 2014 which has helped him to deal with his drug and alcohol problems. His mood swings from the Bipolar condition have been stabilised with medication. He completed a food hygiene course and has learnt some skills in hospitality from his work in custody which he will be able to use in future employment on release.
The Crown submitted that the Sentencing Judge had taken into account the Applicant's health issues although noting that no psychiatric evidence had been placed before him. His Honour doubted any causal connection between the mental illness and the offending. The Crown submitted that the Sentencing Judge gave the Applicant a full discount for the plea and acknowledged his remorse.
The Crown submitted that it was misconceived and contrary to Pearce v The Queen (1998) 194 CLR 610 to base a manifest excess submission on the notional starting point: Piscitelli v R [2013] NSWCCA 8 at [91]; SZ v R [2007] NSWCAA 19; (2007) 168 A Crim R 249 at [40].
The Crown drew attention to the serious injuries sustained by the victim, the high degree of recklessness found by the Sentencing Judge, his Honour's inability to find the Applicant was unlikely to reoffend or had good prospects of rehabilitation, and to the fact that his Honour found special circumstances to reduce the ratio to 66%.
The matters raised by the Crown in relation to Ground 4 should be accepted as far as the individual sentences are concerned although only insofar as they are relevant to this Court's exercise of the sentencing discretion.
It is appropriate to give due weight to the various subjective matters identified in the submissions for the Applicant and the further material provided in his affidavit. Nevertheless, the grievous bodily harm offence was rightly characterised by the Sentencing Judge as "a very serious offence of its type". The assessment of this Court should be that a sentence less than 6 years was not warranted. I propose that the sentence on that count be a non-parole period of 4 years with an additional term of 2 years so as to maintain the same proportions of non-parole and parole periods as provided for in the Court below and as counsel in this Court implicitly conceded was appropriate. The firearm offence was also of such significant seriousness that it cannot be said that a sentence less than 3 years and 6 months was warranted.

Conclusion

I propose the following orders: (1) Leave to appeal granted. (2) Allow the appeal. (3) Quash the sentences imposed in the District Court. (4) Sentence the appellant as follows: (a) Count 2 - a fixed term of imprisonment of 3 years and 6 months commencing 26 October 2012 and expiring 25 April 2016; (b) Count 1 and taking into account the matter on the Form 1 - a non parole period of 4 years commencing 26 October 2012 and expiring 25 October 2016 with an additional term of 2 years expiring 25 October 2018.
BELLEW J: I agree with Davies J.

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: 02 April 2015

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