[2015] HCA 9
Devaney v R [2012] NSWCCA 285
Dinsdale v The Queen (2000) 202 CLR 321
[2000] HCA 54
Everett v The Queen (1994) 181 CLR 295
[1994] HCA 49
Green v The Queen
Quinn v The Queen (2011) 244 CLR 462
Source
Original judgment source is linked above.
Catchwords
[2015] HCA 9
Devaney v R [2012] NSWCCA 285
Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54
Everett v The Queen (1994) 181 CLR 295[1994] HCA 49
Green v The QueenQuinn v The Queen (2011) 244 CLR 462[2011] HCA 49
Haines v R [2012] NSWCCA 238
Hili v The Queen (2010) 242 CLR 520[2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Melbom v R [2011] NSWCCA 22
Paxton v R [2011] NSWCCA 242
Judgment (13 paragraphs)
[1]
Judgment
GLEESON JA: Late in the evening on 28 July 2016, the respondent, Mr Naramsin Askarou, fired three shots at Mr Zia Kryo from close range in the driveway of the victim's home at Prairiewood, hitting him once in the torso. The victim suffered a catastrophic spinal injury and is now a paraplegic. The respondent was charged on indictment with the offence of shooting with intent to murder and, in the alternative, the offence of discharging a firearm with intent to cause grievous bodily harm. The respondent pleaded not guilty to these charges. At a trial in the District Court in August 2019 the jury found him guilty of the offence of shooting with intent to murder. The offence, which was contrary to s 29 of the Crimes Act 1900 (NSW), carried a maximum penalty of 25 years, and a standard non-parole period of 10 years is prescribed: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4, Div 1A.
On 6 March 2020 the trial judge, Judge Bourke SC, sentenced the respondent to imprisonment for 15 years and 6 months, with a non-parole period of 10 years and 6 months. His Honour backdated the sentence to commence on 12 January 2018, being the date upon which the respondent was arrested for this offence.
The Director of Public Prosecutions (NSW) has appealed under s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on the respondent on the ground that it is manifestly inadequate. For the reasons that follow, I am of the view that the Director has established his challenge to the inadequacy of the sentence, and the Court should intervene to set aside the sentence and re-sentence the respondent.
[2]
Circumstances of the offending
The respondent was sentenced on the basis of the facts found by the sentencing judge consistent with the verdict of the jury. The following summary is taken from his Honour's remarks on sentence: R v Askarou [2020] NSWDC 68.
The respondent and the victim had known each other for approximately 14 years having attended the same high school and became friends; the respondent was in the year above the victim. They drifted apart from about 2012.
On 28 July 2016, the victim left his home in Prairiewood shortly after 5 pm and returned at about 10.20 pm. He reversed his Toyota Hi-Lux into the driveway of his home, exited the vehicle and approached the front door of the house. As he did so, the respondent, who was wearing a face covering, and who had been lying in wait for the victim, approached the victim and shot him three times from close range. The victim was struck by one bullet, which entered the left side of his body. The calibre of the bullet was nine millimetre. The respondent ran away from the scene and fled in a getaway car, which had been parked nearby. He quickly disposed of the firearm which was not found in his possession when he was stopped by police shortly after midnight.
The victim was taken to hospital in a critical condition and placed in an induced coma. The bullet removed from his body had punctured his lung and severed his spinal cord. He was placed on a ventilator and remained in a coma for a number of weeks. The catastrophic consequences of his spinal injury are apparent from the sentencing judge's reasons referred to below.
The respondent was arrested on 12 January 2018; he was refused bail and remained in continuous custody until his trial in July and August 2019.
[3]
Sentencing judge's reasons
The sentencing judge referred to the legislative guideposts provided by the maximum penalty and standard non-parole period for the s 29 offence, the objective gravity of the offending, and the subjective circumstances of the respondent.
Directing himself to the objective seriousness of the offending, his Honour found that:
1. the offence was not the result of a sudden loss of control in the heat of anger, but rather "the offender carried out an attempted execution of Mr Kryo": at [7];
2. the offence involved some planning: the respondent had prepared himself for the shooting by obtaining a firearm and had laid in wait for the victim; he had also taken steps to disguise himself by wearing a face covering, most likely a balaclava, and a getaway car was also parked nearby, providing the means for the respondent to flee the scene of the shooting: at [7] and [9];
3. the offence was significantly aggravated by reason of permanent consequences for the victim, which his Honour found "can only be regarded as catastrophic" having regard to the medical evidence and victim impact statement, summarised at [9] and [10] as follows:
[9] ... More significantly however are the permanent consequences for Mr Kryo which are set out in the reports of Dr Shetty. In short, the spinal cord injury has resulted in a permanent loss of function of Mr Kryo's lower limbs including impaired control to his bowel and sexual functioning. He also requires intermittent self-catheterisation. Due to his loss of feeling in lower limbs, he is at ongoing risk of skin breakdown due to pressure, trauma or burns. Mr Kryo is now able to mobilise only with the assistance of a wheelchair and will require lifelong follow-up, and review to ensure that he does not develop bladder, bowel, respiratory or pain implications which commonly occur after spinal cord injury.
[10] In a Victim Impact Statement admitted on sentence Mr Kryo confirmed these matters and explained the devastating consequences which he faces on a daily basis which not only affect him but, inevitably have had a very significant impact on his family. …
1. the offence was further aggravated (under Crimes (Sentencing Procedure) Act, s 21A(2)(j)) by reason of the respondent being subject to conditional liberty at the time of the offending, having been released on bail for charges of drug supply and possession: at [10].
His Honour concluded the offending was comfortably above the mid-range of objective seriousness and within the high range of objective seriousness: at [10].
After considering the evidence of the victim, his mother and Mr Labib Warda, a school friend and neighbour, his Honour found that "the shooting was motivated by the offender's long-held belief that the victim was responsible for the theft of his safe and its contents in 2012": at [16].
Addressing the respondent's subjective circumstances, the sentencing judge made the following findings and observations:
1. the respondent was 24 years old at the time of the offence and 28 years old at the time of sentencing: at [19];
2. the respondent was born in Australia and is of Assyrian heritage; he grew up in a loving and supportive family. While he did not complete his HSC, he was undertaking an apprenticeship in his father's automotive business, where he worked up until the time of his arrest: at [18];
3. the respondent has a criminal history which "although not extensive" dates back to 2012 and includes drug offences, an offence of behaving in an offensive manner, and an offence of having custody of a knife near a school: at [19];
4. during his psychological assessment, the respondent gave a history that he had experimented with the use of cannabis from his early teenage years, he had used ecstasy for a number of years from the age of 17 and he had used cocaine primarily on weekends: at [20];
5. the psychological report of Ms De Santa Brigida expressed the opinion that the respondent indicated a relatively unremarkable psychological profile other than some history of anxiety and the onset of depressive symptoms in the past. Nonetheless, the respondent had no history of admission to any mental health facilities: at [20];
6. whilst the respondent had called an impressive array of character evidence from his family, friends and associates who did not believe that the respondent was capable of committing this offence, their views, although genuinely held, could only be given limited weight having regard to the jury's verdict: at [21];
7. the respondent did not express any contrition or remorse, having continued to maintain his innocence: at [22];
8. the respondent had been party to a deliberate attempt to present false evidence by two witnesses, Ms Rahal and Mr George that he had been with them at the time he shot the victim, which was not regarded by his Honour as an aggravating factor, but was taken into account as relevant to the respondent's prospects of rehabilitation, the need for personal deterrence and community protection, and whether there is any evidence of contrition: at [18].
9. the respondent's prospects of rehabilitation and risk of reoffending must be considered "guarded", given the cold-blooded nature of the offence and the respondent's history of drug offences: at [22];
10. a finding of special circumstances should be made on the basis of the respondent's relatively young age and the fact that this would be his first time in custody: at [24].
In his concluding remarks the sentencing judge noted the importance of not imposing a "crushing" sentence on a relatively young man, observing at [24]:
Whilst I have found that the offence is in the high range of objective seriousness and must receive a stern sentence, I have in accepting the terms of that sentence, endeavoured to avoid imposing a sentence which might be regarded as crushing, especially on the relatively young man who is serving his first, and hopefully his last, term of imprisonment.
[4]
The Crown appeal - manifest inadequacy
The claim of manifest inadequacy is a conclusion and does not depend on the identification of specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. It is necessary in order to establish manifest inadequacy to demonstrate that the sentence appealed against was "unreasonable or plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
The Director does not contend that there is any specific error in the sentencing judge's reasons. Rather, the Director submitted that the shooting offence was one of very high objective seriousness, which was not substantially mitigated by any factor in the respondent's subjective case, and a proportionately severe penalty was required to deter future offending of this kind, to denounce the respondent's conduct and to recognise the extent of the harm caused to the victim. In these circumstances, and having particular regard to the legislative guideposts, which are indicative of the extremely serious criminality involved in offences of this kind, the Director submitted that the sentence imposed upon the respondent was unreasonable or plainly unjust.
Counsel for the respondent submitted that the sentence imposed upon the respondent is not derisory and is appropriate for a relatively young offender, who has the potential for rehabilitation and reform. In oral argument, counsel submitted that the sentence reflected an element of mercy, particularly the "lenient" non-parole period.
[5]
Consideration
The question is not whether the sentence is lenient. As R A Hulme J said in R v Jennar [2014] NSWCCA 331 at [71] (Leeming JA and McCallum J agreeing), reasonable minds may legitimately vary as to this. The question is whether the result is unreasonable and plainly unjust. In this case, the focus is on whether the sentence was manifestly too short: Dinsdale v The Queen at [6].
[6]
Objective seriousness
The starting point in assessing whether manifest inadequacy has been demonstrated by the Director is the significance of the finding of the sentencing judge that the offence was within the high range of objective seriousness. That finding was well supported by the objective circumstances of the offending. The offence was a premeditated attempt by the respondent to execute the victim. The deliberate discharge of a firearm at close range towards a person's torso, as in this case, is an extremely grave example of an offence under s 29: Chaouk v R [2017] NSWCCA 295 at [67]. The offending also involved a number of aggravating factors.
One was planning on the part of the respondent: Crimes (Sentencing Procedure) Act, s 21A(2)(n). The respondent obtained a firearm in advance, disguised himself with a face covering and arranged a getaway car parked nearby to flee the scene.
Another aggravating factor is the harm to the victim: Crimes (Sentencing Procedure) Act, s 21A(2)(g). The catastrophic consequences to the victim are apparent from the medical evidence of Dr Shetty and the victim impact statement: see [9(3)] above. Those consequences are permanent and include a very significantly reduced quality of life and lost employment opportunities due to the victim's injuries. Victims of violent shooting offences are especially vulnerable, as in this case, where the victim was shot at close range in the driveway of his home. It is important that sentences imposed for s 29 offences recognise the harm done to the victim of the crime: Crimes (Sentencing Procedure) Act, s 3A(g).
A further aggravating feature is that the respondent was on bail for other offences at the time of this offence: Crimes (Sentencing Procedure) Act, s 21A(2)(j).
[7]
Subjective circumstances
Contrary to the respondent's submission, the objective seriousness of the offending was not substantially mitigated by any factor in the respondent's subjective case, which was generally not positive and did little to assist him on sentence, as is apparent from the findings by the sentencing judge referred to at [12] and [13] above.
The substantial volume of character evidence tendered on the respondent's behalf was correctly given limited weight by the sentencing judge, in light of the jury's verdict that the respondent had shot the victim with the intention to kill him. And although not expressly mentioned by the sentencing judge, the respondent's criminal record and his reported history of illicit drug use also reduced the weight which could properly be given to this evidence: Williams v R [2012] NSWCCA 172 at [54]-[56].
This is not a case in which the respondent's mental functioning affected his ability to control his actions or to appreciate that they were wrong. As mentioned, the sentencing judge found that the psychologist's assessment indicated that the respondent had a relatively unremarkable psychological profile.
No criticism is made of the sentencing judge in noting the importance of not imposing a "crushing" sentence upon the respondent in the sense that it would induce a feeling of hopelessness and destroy any expectation of a useful life after release: R v WC [2008] NSWCCA 268 at [61]. Nonetheless, the Director correctly submitted that such an assessment requires regard to a number of circumstances which include, the maximum penalties and standard non-parole periods, the objective and subjective factors, as well as application of principles of totality: Haines v R [2012] NSWCCA 238 at [57] (Bellew J, McClellan CJ at CL and Barr AJ agreeing); Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 at [132] (Johnson J, Tobias AJA and Hall J agreeing).
In this case, no question of totality arises because the sentence is for a single offence. Allowance for the respondent's relative youth was made by the sentencing judge's finding of special circumstances; otherwise there was nothing to suggest that the offending was attributable to the respondent's youth or immaturity.
[8]
Other sentencing decisions
Reference to other sentencing decisions for offences under s 29 provides limited assistance in this case. First, there are not many cases, and the Director correctly acknowledged that there are an insufficient number of cases to allow a "range" to be identified.
Second, the s 29 cases referred to in the Director's submissions are different from this case.
In R v Jennar the victim was shot in the abdomen during a robbery in a bowling club and recovered from subsequent surgical procedures.
In Devaney v R [2012] NSWCCA 285 the victim, an ex-girlfriend of the offender, was shot at three times at a gym, two shots hitting her in the abdomen and one perforated her colon. The victim was discharged after one week in hospital and eventually made a good recovery.
In R v Koloamatangi [2011] NSWCCA 288 the victim suffered no injury.
And in Jennar and Devaney, both offenders had reduced moral culpability, unlike in the present case.
The three cases referred to were not relied upon by the Director to test the claim of manifest inadequacy by reference to an examination of sentences imposed in cases most closely comparable to this case: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [62]. Rather, the Director relied upon these cases to illustrate sentences imposed in the case of less serious injuries to the victim than that suffered by the victim in this case, and where the offender had markedly reduced culpability by reason of disadvantaged background, unlike the respondent in this case. To that extent the significant sentences in these three cases provide support for the Director's submission of manifest inadequacy.
The Director also referred to two sentencing decisions for offences under s 33A(1)(a) of discharging a firearm with intent to cause grievous bodily harm, where the maximum penalty is 25 years imprisonment and a standard non-parole period of 9 years is prescribed. This offence is objectively less serious than the s 29 offence, as the s 33A(1)(a) offence does not involve premeditation or the intent to kill.
In Melbom v R [2011] NSWCCA 22, after a 25 per cent discount for pleading guilty to one offence under s 33A(1)(a), as well as eight other offences, and two further offences were taken into account on a Form 1, for the s 33A(1)(a) offence, the offender was sentenced to imprisonment for 15 years with a non-parole period of 9 years and 6 months, which sentence was upheld on appeal. The notional starting point for this sentence was 20 years. The offending involved a violent altercation between the offender and his partner outside her home during which he fired a firearm at her house and when approached by nearby residents fired a single shot at them, hitting one woman in her leg. She suffered bone and tissue trauma and her leg was subsequently amputated. The offender was on conditional liberty at the time of his offending and had a criminal history.
In Chaouk v R, after a 15 per cent discount for pleading guilty to one offence under s 33A(1)(a), as well as three other offences, the offender was re-sentenced on appeal; for the s 33A(1)(a) offence the Court recorded an indicative sentence of 14 years and 6 months. The notional starting point for this sentence was approximately 17 years. The s 33A(1)(a) offence occurred during an armed robbery when a man in a nearby home heard the gun shots and approached the offender who shot the man in the chest from close range, causing a spinal injury which rendered him paraplegic. The offender was 23 years old and had a relatively insignificant criminal history. He was found to have reasonable prospects of rehabilitation.
These s 33A(1)(a) sentencing cases underscore the seriousness of offences involving the use of firearms, particularly where serious harm is caused to the victim. In Melbom the victim suffered the amputation of a leg; in Chaouk the victim was rendered a paraplegic. These cases provide support for the Director's submission of manifest inadequacy in this case.
[9]
Conclusion - manifest inadequacy is demonstrated
When regard is had to the parameters of the legislative guideposts of the maximum and standard non-parole periods for the s 29 offence, and the objective and subjective factors referred to above, I am satisfied that the sentence imposed upon the respondent was manifestly too short.
[10]
Residual discretion
The Crown must also satisfy the Court that what has been called the "residual discretion" to decline to intervene and resentence the respondent should not be exercised in the present case: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [35]-[36] (French CJ, Crennan and Kiefel JJ); CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] (French CJ and Gageler J) and [54] (Kiefel, Bell and Keane JJ). The "residual discretion" arises from s 5D(1) of the Criminal Appeal Act which provides:
The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper (Emphasis added).
The applicable principles concerning the exercise of the residual discretion were summarised by this Court in R v Reeves [2014] NSWCCA 154 at [12]-[19] (Bathurst CJ, Hall and R A Hulme JJ). For present purposes, it is sufficient to reproduce [14]-[16] of that summary:
[14] In Green v R; Quinn v R it was noted by the plurality (French CJ, Crennan and Kiefel JJ), quoting Griffiths v The Queen [1997] HCA 44; 137 CLR 293 at 310 [53] (Barwick CJ), that the primary purpose of Crown appeals against sentence is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": at [1]. This was similarly expressed in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [70]:
"... the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong."
[15] This purpose is a "limiting purpose" that does not extend to the general correction of errors made by sentencing judges. Rather, it provides a framework within which to assess the significance of factors relevant to the exercise of the discretion: Green v R; Quinn v R at [36].
[16] Accordingly, it has been held that it may be appropriate for the appellate court, in the exercise of its discretion, to dismiss a Crown appeal where "circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice": Green v R; Quinn v R at [2].
Turning to the factors that may favour the exercise of the residual discretion in the present case.
First, as to delay, the respondent was sentenced on 6 March 2020 and the solicitor for the Director gave prompt notice by email to the respondent's solicitor on 13 March 2020 that the Crown was considering an appeal against sentence. The notice of appeal filed on behalf of the Director on 30 April 2020 was served on the respondent on 1 May 2020. The delay, such as it is, by the Crown in the filing of the appeal and notifying the respondent has not caused prejudice to the respondent: R v Hallocoglu (1992) 29 NSWLR 67 at 79-80 (Hunt CJ at CL, Grove and Sharpe JJ agreeing).
Second, the respondent's release on parole is not imminent - he is not eligible for release on parole until 11 July 2028: Green v The Queen; Quinn v The Queen at [43].
Third, given the continuing absence of any remorse or contrition shown by the respondent, this is not a case where resentencing would have an effect on progress towards the respondent's rehabilitation: Green v The Queen; Quinn v The Queen at [43].
Fourth, nor is this a case where the Crown's conduct on the sentencing hearing fell below what was reasonably required to assist the sentencing judge to avoid a sentence which was manifestly too low: CMB v Attorney-General for New South Wales at [38].
Recognising the primary purpose of Crown appeals as noted in Green v The Queen; Quinn v The Queen at [36], I have concluded that if the sentence was allowed to stand it would be an affront to the administration of justice which risks undermining public confidence in the criminal justice system: Green v The Queen; Quinn v The Queen at [42]. In my view, the Crown has negated any reason to decline to resentence the respondent in the exercise of the residual discretion: Everett v The Queen (1994) 181 CLR 295 at 306; [1994] HCA 49.
[11]
Re-sentence
For the purposes of re-sentence, it is not in dispute that the objective seriousness of the offence was within the high range of objective seriousness. As I have said, this offence of violence is an extremely grave example of an offence of this type with substantial aggravating factors.
I accept the findings of the sentencing judge with respect to the respondent's subjective case. Allowance for the respondent's relatively young age and his first time in custody will be made by a finding of special circumstances on these grounds.
I have taken into account and given limited weight to the respondent's affidavit dated 18 August 2020 concerning his conditions of incarceration since his arrest, including his inability to undertake drug and alcohol rehabilitation courses, or to advance his education, and the effect of Covid-19 restrictions since March 2020 on visitation by family and friends.
The sentence imposed must recognise the very serious nature of this offence of violence and the necessity that it be visited by condign punishment to provide a general deterrent to future offences of this kind, to denounce the conduct of the respondent, and to recognise the very substantial and permanent harm done to the victim. Both a longer head sentence and non-parole period is required. A lengthy period of parole should be provided to promote the rehabilitation of the respondent.
In my view, a sentence of 19 years imprisonment should be imposed for this offending. Making the same finding of special circumstances as the sentencing judge, I would impose a non-parole period of 13 years.
[12]
Orders
I propose the following orders:
1. Crown appeal against sentence allowed.
2. The sentence imposed by Judge Bourke SC in the District Court on 6 March 2020 be set aside.
3. In lieu, sentence the respondent to 19 years imprisonment consisting of a non-parole period of 13 years commencing on 12 January 2018 and expiring on 11 January 2031, with the balance of term of 6 years commencing on 12 January 2031 and expiring on 11 January 2037. The respondent is eligible for release on parole on 11 January 2031.
ROTHMAN J: I agree with the reasons of Gleeson JA and with the orders his Honour proposes.
PRICE J: I agree with Gleeson JA.
[13]
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: 31 August 2020