Quealey v R

R v Swan [2006] NSWCCA 47 R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 CASES CITED : Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187 R v Rayment [2010] NSWCCA 85 R v Dole ; R v Nguyen [2010] NSWCCA 101 R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398

PARTIES: Julie Ann Quealey - Applicant Regina - Crown Respondent

COUNSEL: H Cox - Applicant S Dowling - Crown Respondent

SOLICITORS: S Hopkins - Aboriginal Legal Service - Applicant S Kavanagh - Solicitor for Public Prosecutions - Crown Respondent

IN THE COURT OF CRIMINAL APPEAL 2008/6624

GILES JA HULME RS J LATHAM J

4 JUNE 2010 JULIE ANN QUEALEY v R Judgment 1 GILES JA : I agree with Latham J. 2 HULME J : I have had the advantage of reading the Reasons for Judgment of Latham J. Subject to three matters, I agree with her Honour. 3 I do not regard Keleman SC DCJ as correct in his characterisation of the applicant's second offence of shooting at the premises as falling "towards the upper end of the middle range of objective seriousness for such offences". 4 Relevant to any judgment on such a question is the likelihood of any person being injured by the shot. There was no evidence before his Honour as to the distance the applicant was from the premises at the time the second shot was fired and the fact that none of the pellets penetrated the internal wall suggests the applicant must have been some appreciable distance away. On the evidence before his Honour, this offence was not as serious as the first shot and in my view the sentencing judge assessed the second shooting offence as more serious than he should have. 5 Secondly, Keleman SC DCJ seems to have regarded the presence of the applicant's 2 year old granddaughter in the car from which the second shot was fired as an aggravating factor. Why this should be so is not apparent. It must be not uncommon for at least some young children growing up in the country to have firearms discharged in reasonably close proximity to them on occasions and I see no basis for inferring that the mere discharge of a firearm in close proximity to a young child is a circumstance of aggravation. 6 I do regard the removal of the applicant's granddaughter from her care as extra-curial punishment and this notwithstanding the removal was presumably effected on the ground it was in the granddaughter's interests. Nevertheless, separation of the applicant and her granddaughter is a necessary incident of the applicant's incarceration and this must significantly affect the weight to be given to the event. It is impossible to assess what the applicant's chances of regaining custody of her granddaughter will be when she is released and when her circumstances then or within a reasonable period thereafter are completely unknown. 7 Notwithstanding these matters, as Latham J has pointed out, Keleman SC DCJ's commencing point for the sentences he imposed on the counts of firing at a dwelling house must have been slightly less than 7 years or half the maximum penalty prescribed. In these circumstances, I agree with her Honour that neither in their individual length nor in totality were the sentences imposed manifestly excessive. Furthermore, I am not persuaded that any lower sentence for the second shooting offence should have been imposed. I agree also with what her Honour had to say in respect of the parity ground and the orders she proposed. 8 LATHAM J : The applicant seeks leave to appeal against sentences imposed upon her by Keleman SC DCJ (the Judge) following her pleas of guilty to one count of possess an unregistered firearm (s 36(1) Firearms Act 1996) and two counts of fire a firearm at a dwelling house with reckless disregard for the safety of any person (s 93GA(1) Crimes Act 1900). The offence under the Firearms Act (Count 1) carries a maximum penalty of 5 years imprisonment. The offences under the Crimes Act (Counts 2 and 3) each carry a maximum penalty of 14 years imprisonment. 9 The applicant was sentenced on Count 1 to a total term of 15 months, comprising a non parole period of 10 months. On Count 2, the applicant received a total term of 5 years, comprising a non parole period of 3 years and 4 months. On Count 3, the applicant received a total term of 5 years, comprising a non parole period of 3 years. A measure of accumulation resulted in an aggregate non parole period of 4 years, with a balance of term of 2 years. 10 The applicant submits that the Judge erred in his assessment of the objective gravity of the offences under s 93GA(1), that there is a justifiable sense of grievance when one has regard to the sentence imposed upon a co-offender for the offence constituted by Count 3, and that the sentences imposed on Counts 2 and 3 are manifestly excessive.

The Offences 11 The applicant and Mark Koshemakin had been in a de facto relationship for approximately 23 years prior to their separation in 2004. They remained on good terms and saw each other socially. The applicant had an adult daughter from a previous relationship who was also on good terms with the applicant's former de facto, but who was estranged from the applicant. 12 At about midday on 27 October 2007, the applicant went to a home in Claymore where she had lunch with her former de facto and a number of other occupants of those premises. The applicant reportedly had six or seven glasses of wine and was moderately intoxicated. The applicant left the premises about 3:30 p.m. and returned later in the evening, at which time she had an argument with her former de facto. The argument centred upon an allegation of sexual abuse made by the applicant's daughter against the former de facto spouse. It was accepted by the Judge that the applicant became aware of this allegation about six days earlier. 13 The applicant became upset and left the address in the company of her granddaughter, aged two. The applicant stopped at a nearby address in Claymore where she spoke to the co-offender, Robert Piercy, a man previously unknown to her. The applicant complained to the co-offender of her treatment at the hands of her former de facto. The co-offender indicated to the applicant that he had a shotgun in a cupboard in his bedroom. The applicant went and found the shotgun, which was a 12 gauge double barrel shotgun, stored in three individual parts. 14 The applicant took the barrel of the shotgun and returned to the premises of the former de facto. She entered the premises and spoke to him. He knocked the barrel from the applicant's hands and told her to leave. The applicant returned to the co-offender's premises and told him that her former de facto and the other guests had laughed at her. The co-offender then put the remaining parts of the shotgun together and handed it to the applicant, who placed a cartridge into the firearm and told the co-offender "I'll give them a scare". The applicant returned to the premises armed with the loaded shotgun. 15 The applicant was heard to shout "I've got a gun, if you don't let me in, I'll blow the door in". The applicant then fired a single round from the firearm which penetrated the fibro board cladding. The pellets exited through an internal wall in the lounge room and struck the television, dispersing over a wide area throughout the lounge room and kitchen. There were four people inside the house at the time. The applicant's granddaughter was across the road in her pram when the shotgun was discharged. This constituted an offence (Count 2) under s 93GA(1). 16 The applicant then returned to the co-offender's premises where she put the shotgun in the back of the co-offender's vehicle. The applicant then asked the co-offender to drive past the victim's premises to see "if she gave them a good scare". The co-offender complied. On arrival at the premises, the applicant got the shotgun from the boot of the vehicle, handed it to the co-offender, who placed a shell in the firearm and returned it to the applicant. The applicant then fired a second shot at the premises. The pellets struck the fibro cladding on the second storey near the first bedroom. They did not penetrate the internal wall. The same four people were inside the house. The applicant's granddaughter was in the co-offender's vehicle. This constituted an offence (Count 3) under s 93GA(1). The applicant's possession of the shotgun throughout these events constituted the offence (Count 1) under the Firearms Act. 17 The applicant and the co-offender then drove from the scene and were arrested a short time later by police who were conducting random breath testing. The applicant later denied any involvement in the offences, although she pleaded guilty at the Local Court. The co-offender made full admissions when he was interviewed and pleaded guilty at the Local Court.

Ground 1 : Error in the Assessment of Objective Gravity of the s 93GA(1) Offences. 18 The Judge determined that the offences under s 93GA(1) fell towards "the upper end of the middle range of objective seriousness for such offences". His Honour was also satisfied beyond reasonable doubt that the applicant "played the more dominant and aggressive role" compared to that of the co-offender and that those differing roles would "need to be reflected in the sentencing exercise."

19 This assessment took into account the fact that a shotgun was discharged on two separate occasions at residential premises, in the knowledge that four persons were inside, the first shot penetrating the house and the second shot in the constructive presence of the applicant's two year old granddaughter. 20 The applicant's complaint is that each offence represented only one shot fired from the shotgun, that "the offence was relatively impulsive" and that the applicant was motivated by the recent disclosure of her daughter's alleged sexual abuse at the hands of her former partner. The applicant contends that the Judge failed to appreciate that her moral culpability for these offences was thereby reduced, and that there was, accordingly, a corresponding reduction in the need for the sentences to reflect general deterrence. It was submitted that "the offences were no more than middle range objective seriousness". 21 Before considering the issue of motive, it is apparent from the sentence of 5 years on each offence that the Judge's starting point, before the application of a 25% discount for the pleas of guilty, was in fact slightly less than 7 years. In that respect, the result nonetheless conforms with the applicant's submission as to the objective gravity of each of the offences. 22 I do not agree that the offences can be accurately described as impulsive. If the applicant's submission relates to the first occasion, it ignores the fact that, between the argument with Mr Koshemakin and the discharge of the shotgun, the applicant has walked from the premises, engaged in conversation with the co-offender, gone inside to get the barrel of the shotgun, returned on foot to her ex-partner's house where she attempted to frighten him, gone back to the co-offender's premises, waited for the shotgun to be assembled, loaded the shotgun and then walked back to the subject premises. The submission has even less force in respect of the second occasion. Both offences took place over the course of an hour. The applicant's consumption of alcohol may have emboldened her, but it had no other bearing on the commission of the offence. 23 The applicant relies upon R v Swan [2006] NSWCCA 47 to support the submission that the motive for the commission of the offences reduced her moral culpability. As the following decisions make clear, not only do the statements in Swan have to be understood against the factual matrix of that case, but the Court's consideration of this issue since Swan tends to undermine the applicant's argument. 24 In R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [30] - [33] Howie J said : _ The offence was one well above the mid-range of objective culpability. True it was not one where the respondents cold-bloodedly singled out an innocent passer-by as the subject for their drug-fuelled aggression. If such had been the case, the offence would have been aggravated by that fact. I accept that it was a relevant factor that the respondents believed that the victim had been guilty of sexual activity to the respondent Mitchell: R v Swan [2006] NSWCCA 47. But a grievance with the conduct of another, whether justified or not, cannot be a license to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case the motive of the respondents for assaulting the victim was of limited mitigating value. The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect. But as was pointed out in Swan , the existence of motive is relevant to other factors that may impact upon the sentencing discretion. In this case, particularly with respect to the respondent Gallagher, it partly explains why he committed such a serious offence notwithstanding that he had no prior criminal record and was otherwise considered a person of good character, apart from his use of illicit drugs. The existence of the motive indicated that in his case there was no need for personal deterrence. But because of Mitchell's prior offence of violence and because he was on a bond at the time, the significance of motive in this respect was reduced and it was appropriate to consider personal deterrence as a relevant factor notwithstanding his remorse.

It is importance therefore to understand that the existence of a motive for the commission of a crime and the nature of that motive may be important factors in the exercise of the sentencing discretion but may in some cases point in different directions. It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence. In some cases, as where the use of illegal drugs explains the commission of the offence, it offers no mitigation of the objectives seriousness of the offence, yet may allow significance to be given to rehabilitation of the offender: see generally Wood CJ at CL in R v Henry (1999) 46 NSWLR 346.

In Swan a significant matter was the fact that the offender was intellectually disabled. He offended against the victim not only in order to achieve personal retribution for the sexual assaults committed against him but also from a misguided view that he was dissuading the victim from assaulting other intellectually impaired persons, as he believed the victim had been doing. In considering what he did and the reason he did it, his intellectual impairment was a relevant factor. It was for this reason that the Court was able to attenuate the need to deter persons from taking the law into their own hands: see per Spigelman CJ at [60]. There was no such attenuating factor in the present case. 25 Similar comments were made by Hall J in Barlow v The Queen [2008] NSWCCA 96; (2008) 184 A Crim R 187 at [40] : - The nature of the conduct by the applicant could be correctly identified in the remarks on sentence as having been in the nature of 'vigilante' conduct. The seriousness of the offence in question, despite the purpose or motivation having been revenge for the alleged sexual assault by the victim upon her some six years before, involved a deliberate course of conduct, in company with another, whereby the applicant decided to act outside the law in seeking retribution for what she alleged had been done to her by the victim. Such conduct, as the sentencing judge correctly identified, is the antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms. 26 Most recently, Johnson J in R v Rayment [2010] NSWCCA 85 said at [106] :- This Court has emphasised that resort to criminal conduct as a response to some misconduct or crime committed (or believed to have been committed) by the victim is to be severely discouraged. As Adams J observed in R v Elmir [2003] NSWCCA 192 at [20], it is not correct to characterise such conduct as the offender taking "the law into his own hands" - conduct of this type is criminal: Lovell v R [2006] NSWCCA 222 at [70]. In Barlow v R [2008] NSWCCA 96, McClellan CJ at CL observed at [2]: "The offence committed by the applicant was serious. Motivated by the wrong she believed was previously done to her and accompanied by a male friend, she took the law into her own hands. The victim was punched, dragged, hit with kitchen tongs and threatened with death and generally put in terror for at least two hours. Whatever be the crime committed by the victim, a civilised society cannot condone such conduct. The rule of law requires that offenders be tried by the appropriate authorities and, if convicted, punished in accordance with accepted principle. In our society crime is dealt with by the courts." 27 Finally, Howie J (McClellan CJ at CL agreeing) in R v Dole ; R v Nguyen [2010] NSWCCA 101 said :- 4 Nor do I appreciate how the motive was "perfectly understandable", to quote the sentencing Judge. The courts should give no countenance to such conduct whatever the motivation for it. It is an anathema to the rule of law, which the courts seek to enforce, to have persons like the respondents deciding guilt and punishment upon a member of the community. The sentence needed to be a significant one for the purpose of general deterrence regardless of the subjective cases of the two respondents. There was not the slightest evidence to suggest that either of the respondents did not appreciate the consequences of their conduct. 28 Consistent with these authorities, the applicant's motive for the commission of these offences explains her conduct, but it did not reduce her moral culpability to any significant degree. The applicant's submission may have been on stronger ground had the applicant discharged the shotgun on only one occasion, although even in that circumstance, there is still a sound basis for inferring that the applicant embarked upon a deliberate and considered course of conduct after she had been humiliated by her ex partner, following the initial confrontation with the barrel of the firearm. General deterrence was important in this sentencing exercise and, like Mitchell, the applicant was on conditional liberty at the time. 29 The Judge's assessment of the objective gravity of the offences under s 93GA(1) was in my view entirely appropriate. This ground of the appeal fails.

Ground 2 : Parity 30 The applicant claims a legitimate sense of grievance with respect to the sentence that was imposed upon the co-offender for the s 93GA(1) offence, being Count 3. The co-offender was charged with that offence on the basis of a joint criminal enterprise to discharge the shotgun. As I have already noted, the Judge found, in my view correctly, that the applicant was the more dominant and aggressive in the commission of this offence, a proposition with which the applicant's legal representative below agreed. The applicant now submits that the co-offender's role was not significantly less than the applicant's. 31 There is no substance to this ground. It was the applicant who suggested that they return to the premises, after having placed the shotgun in the boot of the vehicle. It was the applicant who retrieved the shotgun from the boot and it was the applicant who discharged it for the second time. More importantly, the applicant committed this offence (and the other offences) in breach of two bonds to be of good behaviour for a period of 12 months, imposed barely 4 months before these events. The co-offender had a minor criminal history for driving offences between 1981 and 1983, a goods in custody offence in 1998, for which he was fined, and a low-range PCA in 2004. 32 The co-offender received a sentence of 4 years, comprising a non parole period of 2 years. An offence of possess ammunition without a licence (with a maximum penalty of 50 penalty units) was taken into account on a Form 1. A total term and non parole period one year less than that imposed upon the applicant properly reflects his lesser role and the lack of any relevant criminal history. The disparity is not so great that the applicant's sense of grievance is justified. 33 The applicant further submits that the totality of the sentence imposed upon the applicant, when compared with the aggregate sentence imposed upon the co-offender, reveals disparity. The offences that were common to both the applicant and the co-offender were the discharge of the firearm on the second occasion and the possess unregistered firearm charge. The co-offender was sentenced in relation to a further charge of being an accessory before the fact to possession of an unregistered firearm in a public place, carrying a maximum penalty of 10 years imprisonment. It is conceded that there were no relevant distinguishing features in the respective subjective cases. 34 The co-offender received a total term of 4 years imprisonment, with an aggregate non parole period of 2 years. Given the co-offender's lesser culpability on the s 93GA(1) charge that was common to both, and his exposure to a 10 year maximum penalty, rather than the 14 years to which the applicant was exposed in respect of the additional s 93GA(1) charge, an aggregate sentence two years less than that imposed upon the applicant does not strike me as disparate. This ground of the appeal also fails.

Ground 3 : Manifest Excess of Sentences on Counts 2 and 3. 35 This ground is confined to the two charges involving the discharge of the shotgun. The Judge imposed the same sentence in respect of each of them, but for a slightly longer non parole period on Count 2. That approach is justified by the fact that the shotgun pellets penetrated the internal walls of the house on that occasion, exposing the occupants to a real risk of serious injury. 36 It was submitted on the hearing of the appeal that the applicant had suffered a form of extra-curial punishment, in that her arrest and sentence had resulted in the removal of her granddaughter from her care. The applicant had undertaken the fulltime care of her granddaughter since the child was 6 weeks old. The Judge noted in his remarks that all of the applicant's grandchildren now resided in foster care and that the psychological report stated that the applicant "regrets that through her actions she has essentially lost everything of significance in her life." 37 The applicant's legal representative below did not rely upon this circumstance as extra-curial punishment. That is understandable, given the removal of the granddaughter from the applicant's care was not just a consequence of the applicant's incarceration, but was also, no doubt, a consequence of the applicant's conduct in exposing the child to the use of firearms. It is difficult to properly characterise such an outcome as "punishment". The authorities were required to act primarily in the best interests of the child. The fact that the child's removal indirectly affected the applicant was a very secondary consideration. 38 This Court's decision in R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398 makes it clear that, even in cases where extra curial punishment is established, the ultimate question is whether an offender receives an appropriate penalty : - [62] .. while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight. 39 For my part, I would not treat the removal of the granddaughter from the applicant's care as extra-curial punishment for the reasons I have outlined above. Even if I am wrong in that respect, this is one of those cases where "extra-judicial punishment attracts little or no significant weight."

40 It follows from the consideration of Ground 1 that the applicant cannot succeed on this ground. It is not submitted that the Judge otherwise failed to have adequate regard to the applicant's subjective case, or that any other patent error is disclosed by the remarks on sentence. The applicant's life has unfortunately been marred by physical and sexual abuse, polysubstance abuse and cancer, which was successfully treated. The Judge noted that her history had contributed to her depression and an anxiety disorder. Notwithstanding these matters, the gravity of the offences called for condign punishment. 41 I would grant leave to appeal but dismiss the appeal. **********

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