R v Zoef

Court of Criminal Appeal (NSW)|2005-03-23|Before: McColl JA, Barr J, Johnson J, Mr P, Coll JA

JUDGMENT OF: McColl JA at 1; Barr J at 108; Johnson J at 109

DECISION: (1) Appeal against conviction dismissed (2) Leave to appeal against sentence granted, but appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - appellant shot victim who broke into appellant's premises - EVIDENCE - whether trial judge erred in admitting evidence of silencer not proved to have been used in the commission of the offence - SUMMING-UP - whether trial judge's directions concerning self-defence were capable of causing a miscarriage of justice - SELF-DEFENCE - whether jury's verdict was unreasonable - SENTENCING - whether sentence manifestly unreasonable.

Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Appeal Rules Evidence Act 1995 Firearms Act 1996 Weapons Prohibition Act 1998

House v R [1936] HCA 40; (1936) 55 CLR 499 Markarian v R [2005] HCA 25; (2005) 215 ALR 213 MFA v R [2002] HCA 53; (2002) 213 CLR 606 Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 R v Abusafiah (1991) 24 NSWLR 531 R v BD (1997) 94 A Crim R 131 CASES CITED: R v Bloomfield (1998) 44 NSWLR 734 R v Katarzynski [2002] NSWSC 924 R v Nai Poon (2003) 56 NSWLR 284 R v Niass [2005] NSWCCA 120 R v Polkinghorne (1999) 108 A Crim R 189 R v Way (2004) 60 NSWLR 168 Tripodina & Morabito v R (1988) 35 A Crim R 183

Mr P Byrne SC/Ms G A Bashir (Appellant) COUNSEL: Ms E Wilkins (Crown)

Murphy's Lawyers Inc (Appellant) SOLICITORS: Mr S Kavanagh (Crown)

LOWER COURT JUDICIAL OFFICER: His Honour Judge Berman SC

IN THE COURT OF CRIMINAL APPEAL 2004/2730

McCOLL JA BARR J JOHNSON J

Wednesday, 3 August 2005 Regina v Tony ZOEF Judgment 1 McCOLL JA: Tony Zoef appeals against his conviction on 16 October 2003 after a trial in the Sydney District Court before his Honour Judge Berman SC and a jury on one count of maliciously inflict grievous bodily harm with intent to do grievous bodily harm: s 33 of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for twenty-five years. 2 The appellant shot a Mr Carberry (the "victim") using a sawn off rifle. The victim sustained a gunshot wound which damaged his spinal cord, rendering him a paraplegic. The victim had entered the appellant's house at approximately 2 am on 25 November 2001. At the trial the appellant admitted shooting the victim, but claimed he had done so in self-defence: s 418 Crimes Act 1900. On his appeal against conviction he challenges the admission of evidence of a silencer which was found at his home after the shooting, the trial judge's directions concerning self-defence and also asserts that the jury's verdict was unreasonable: s 6 Criminal Appeal Act 1912. 3 The appellant was sentenced on 19 December 2003 in respect of his conviction and in respect of two related offences to which he had pleaded guilty on a separate indictment. These offences were the unauthorised possession of a shortened firearm (s 62(1)(b) of the Firearms Act 1996 - maximum penalty imprisonment for ten years) and the unauthorised possession of a prohibited weapon, the silencer to which I have already referred (s 7(1) of the Weapons Prohibition Act 1998 - maximum penalty imprisonment for fourteen years). 4 The appellant also seeks leave to appeal against his sentence in respect of the offence under s 33 Crimes Act 1900 - the ground of appeal with respect to sentence is confined to the s 33 offence only, and not the firearms offences.

The sentence 5 The appellant was sentenced to concurrent terms of imprisonment in respect of the three offences. In respect of the offence of maliciously inflicting grievous bodily harm with intent, he was sentenced to imprisonment for ten years commencing on 16 September 2003 with a non-parole period of seven and a half years, expiring on 15 March 2011. For the offence of possession of the shortened firearm he was sentenced to imprisonment for three years commencing on 16 September 2003 and for the offence of possession of the silencer he was sentenced to imprisonment for one year commencing on 16 September 2003.

The evidence 6 The following account of the evidence is taken from the Crown's submissions which the appellant did not controvert. 7 The victim was the former de facto partner of the appellant's girlfriend, Ms Rachael Kolster. They had two young children. They had been together for about seven years until Ms Kolster left the victim in October 2001 taking the two children with her. The appellant met Ms Kolster in October 2001, shortly before she left the victim. 8 The appellant did not give evidence at the trial but in his record of interview with police, the transcript of which became Ex "X", he said that he had been told by Ms Kolster that the victim had threatened to kill her, the appellant and the children on more than one occasion. He was also aware that the victim had a history of violence. 9 The appellant said in his interview with police that he had never spoken to the victim about the break up of the victim's relationship and that he had tried to avoid him. There had been one previous incident two to three weeks before the shooting where Ms Kolster had left the house where she was living with the appellant after the victim had visited. The victim returned looking for Ms Kolster and made some unspecified threats about what he would do if she was in the house. The situation resolved itself without violence when the appellant and the victim went in separate cars to look for her. The victim left saying "I'll see you real soon" but made no direct threat of violence at that time. The appellant was aware that the victim had thrown a brick through the back window of the appellant's house the week before the shooting. The victim admitted in his evidence at trial that he had done this. 10 On the night of the shooting, the victim went to the appellant's house at midnight. Earlier that night, the appellant had parked his car a couple of streets away from his house "to calm the situation down" because he thought the victim may drive past the house and see it. The purpose of the victim's visit on the night of the shooting was, in effect, to establish whether or not the appellant and Ms Kolster were in a sexual relationship. He did not believe Ms Kolster's denials of any such relationship. The victim waited for a couple of hours outside the house but did not see anyone. He then drove around the block looking for the appellant's car, which he located two or three streets away. He returned to the house and telephoned Ms Kolster on her mobile phone while he was at the front of the appellant's house. He got no answer. He then went to the back of the house, pushed a board on the broken window and called for Ms Kolster. She came to the window. There was a brief conversation, after which Ms Kolster fainted. The victim said he then called out to the appellant saying that Rachael had fainted, that he knew the appellant was in the house and asking the appellant to turn the light on. 11 The appellant's account of the events surrounding the offence are taken from his record of interview. The appellant drew a plan of his house and marked on it with a cross his position when Ms Kolster was at the back of the house talking to the victim. The appellant had moved from a mattress on the floor behind a lounge where he and Ms Kolster slept to the door of the lounge room that led to the back of the house via the kitchen. He stood there listening to the conversation between Ms Kolster and the victim. The appellant said that he heard her asking the victim what he was doing there. He did not hear what the victim was saying other than that he "was goin' off at her". 12 The appellant said there was a lull and he thought the victim was leaving. He then heard the victim screaming. He also heard the board that had been covering the back window breaking and heard the victim climbing in through the back window. 13 Either at the time he heard the victim come through the window, or after the victim came through the window, the appellant got his sawn off rifle from a bag in the lounge room. At that stage the rifle was not loaded. The appellant loaded it, but, according to his record of interview, did not know at what stage he did so. Having grabbed the firearm, the appellant said he waited. 14 At some stage after arming himself he moved from the doorway back into the lounge room. He told police that when he shot the victim he had moved back from the lounge room doorway to a set of lounges in the lounge room. He marked the position he was in when he fired the shot on the diagram he had drawn. The appellant said the victim came into the lounge room, kept coming towards him and he fired. He did not say anything to the victim before he shot him. The appellant was more scared than anything else. He said the victim was screaming as he came through the house, but he could not say what he was saying. He said the victim was a metre and a half to two metres away from him when he shot him. 15 The appellant said the time from when he first heard the victim talking to Ms Kolster to the time he fired the shot was anything from one to three minutes. He said he was frightened to run for help because the victim would have heard him moving in the lounge room and caught him. 16 The appellant had purchased the sawn off rifle a couple of months before, at the time when the trouble with the victim commenced. He said he acquired the gun in order to intimidate the victim. He intended bringing it out and waving it around in the victim's presence, while screaming, in order to get the victim "to back down, or somethin', at the very most". The appellant said that he kept the rifle in a bag in the lounge room and that besides the rifle, there were only videos in the bag. 17 When police examined the rifle after the shooting, it was found to have a live bullet in the breach. A magazine containing a live bullet was also attached to the rifle. The appellant was unable to explain why the police found another round of ammunition in the chamber of the rifle after the shooting. 18 After the police had concluded the record of interview with the appellant they returned to the appellant's house. They located the bag he had mentioned near the mattress in the appellant's lounge room. It contained a silencer and four bullets of the type used in the shooting. The silencer was the subject of the possession charge to which the appellant pleaded guilty. The trial 19 The appellant and Ms Kolster were arraigned together. However the jury was discharged in respect of Ms Kolster after a voir dire, the details of which do not require consideration. 20 Before the Crown opened to the jury counsel for the appellant foreshadowed an argument about the admissibility of evidence of the silencer. 21 The Crown opened its case on the basis that "the two accused Kolster and Zoef had reached some sort of plan or agreement to shoot Mr Carberry before that night, in the expectation that at some stage he would be returning to those premises". It is apparent from the Crown's opening address that the case against the appellant did not rely solely on him being a party to any such plan or agreement with Ms Kolster. The Crown also asserted that the appellant had "already decided to shoot Mr Carberry with that weapon and also that he'd already decided to shoot Mr Carberry before James Carberry went to the house on that night". 22 The Crown did not assert that the silencer was used during the shooting. Its ballistics expert, Mr Van der Walt, had given evidence that he could not form an opinion about this because he had not had access, for testing purposes, to the bullet actually fired by the appellant. Mr Van der Walt conducted tests with the silencer attached to the rifle. He said the silencer reduced the sound of the firearm "significantly" and that, without the silencer, the rifle was "very loud". After he fired the rifle with the silencer attached to it six times he observed it was damaged. He could not say whether that damage occurred on the first or sixth shot. The Crown submitted that it was not the case that the silencer could not have been used in the shooting because it was damaged. 23 Counsel for the appellant objected to the evidence being led as the silencer was never used and there was no evidence of a plan in the case against the appellant. He also argued that the silencer could not have been used with any accuracy, having regard to the evidence of the ballistics expert. He submitted that there was no evidence of an intention to use the silencer as it was not on the gun. He also objected that there was no evidence of premeditation other than having the gun in the house. He pointed out that the evidence of the victim had been that his attendance at the home was a total surprise. 24 The argument about the admissibility of the silencer took place on the third day of the trial. On the first day of the trial, when flagging to the trial judge that there would be an argument concerning its admissibility on the basis of relevance, counsel for the appellant also suggested that the prejudicial effect of evidence of the silencer outweighed its probative value. The latter argument was not referred to when the argument concerning the silencer's admissibility took place. 25 The Crown's case was that the evidence relating to the silencer was admissible against the appellant upon alternative bases: first, as evidence of pre-planning by the appellant, from which the inference could be drawn that he had a pre-existing intention to shoot the victim and, secondly, as evidence of a joint plan involving the appellant and Ms Kolster. 26 The Crown's argument concerning the admissibility of the silencer appears from the following exchange between the trial judge and the Crown Prosecutor: "His Honour Am I right in assuming that your case is that the accused Mr Zoef obtained the firearm and silencer for the purpose of dealing with Mr Carberry when he broke in as he was expected to? Crown Prosecutor That's right your Honour. His Honour And that part of your case would be that if you're acting in self-defence you don't need a silencer? Crown Prosecutor That's precisely the Crown position your Honour." 27 Counsel for the appellant argued that the possession of the silencer did not amount to evidence of a plan to shoot the victim, particularly in circumstances when the silencer was not used and, he contended, could not be used on the evidence of the Crown's ballistics expert. 28 The trial judge ruled that evidence of the presence of a silencer in the home was admissible. His judgment on its admissibility was succinct. He held: "The Crown case is that the silencer is relevant as it indicates a degree of pre-planning to shoot Mr Carberry on behalf of both accused. True it is that the silencer was not used and it may well be that the original plan was that the silencer would be used and Mr Carberry would be shot other than when he was breaking into the home. The presence of the silencer is relevant because the jury could use that legitimately as tending to suggest that there was a plan to shoot Mr Carberry other than in self-defence. That in turn is relevant to the question of why Mr Carberry was shot when he was. It may well be that Mr Zoef and Ms Kolster were taken by surprise when Mr Carberry turned up unexpectedly on 25 November 2001 but the issue as to why he was shot, whether it was in self-defence or whether it was not in self-defence is affected by whether there had been an earlier plan to shoot and as I say, that in turn is affected by whether equipment had been obtained which would enable Mr Carberry to be shot secretly, namely the silencer". 29 Ms Kolster was discharged from the trial on the sixth day. The trial judge and counsel then undertook a detailed examination of the evidence to determine what evidence the jury should be directed to ignore as a consequence. That exercise resulted in a consensus that the jury should be directed to ignore any suggestion of any DNA evidence and the evidence of one witness. 30 In his closing address to the jury the Crown Prosecutor explained that the real issue in the case was self-defence. He then said: "So we are all clear about it…the crown says that the accused Zoef shot Mr Carberry deliberately intending to cause those really serious injuries… The accused says that he acted in self-defence and not pursuant to any prior agreement or arrangement that he had with Rachael Kolster…" 31 The Crown Prosecutor then went on to explain that in order for the Crown to discharge its burden of demonstrating beyond reasonable doubt that the appellant had not acted in self-defence it had to establish first, that he did not believe that it was really necessary to shoot the victim that evening in order to defend himself or Ms Kolster or, if he did hold such a belief, nevertheless his conduct was not reasonable in the circumstances as he perceived them to be. 32 The Crown Prosecutor accepted that the appellant knew the victim was a violent person. However, the Crown submitted to the jury that there were a number of respects in which it would find the appellant's explanation of his conduct on the evening wanting. 33 Thus the Crown stressed the opportunity the appellant had to leave the premises on the evening. It contrasted that with the fact that, instead of leaving, the appellant had waited in a dark room, armed himself with a rifle, loaded it with bullets and fired the rifle at the victim almost as soon as he entered the room. The Crown also pointed out that on the evening of the shooting there was no evidence that the victim was armed or that the appellant knew whether or not the victim was armed before he shot him. He suggested that shooting the victim in such circumstances was "extreme behaviour". 34 He then said to the jury: "You will consider the evidence …as to the circumstances as the accused Zoef himself saw them before you can resolve this issue of self-defence and before you can resolve whether the shooting was the result of some arrangement that Mr Zoef had with Ms Kolster…" He then went on to deal with the circumstances of the evening. 35 The Crown drew attention to the fact that on other occasions, despite the victim's violent attitude, encounters between him and the appellant had not led to violence. Although there had been previous confrontations the appellant had been able to talk his way out of the situation. The Crown contrasted that prior experience with the appellant's conduct on the evening of the shooting. Thus, submitted the Crown to the jury, the appellant knew that the way to deal with the victim was to avoid him or retreat. 36 The Crown referred the jury to answers the appellant had given during his record of interview in which he had suggested that he did not think the gun would work because of the amount of rust on it and suggested that explanation was nonsense, particularly in the light of the evidence of the live ammunition which the appellant had acquired. 37 The Crown drew the jury's attention to the fact that the appellant had been a recreational shooter and had used rifles, particularly of the sort with which he shot the victim, before the night of the shooting. 38 The Crown also drew the jury's attention to the fact that during the course of the record of interview, the appellant had informed the police that the sawn off rifle had been kept in his backpack and that there were also video tapes in that backpack but nothing else. That information, the Crown pointed out, had turned out not to be "quite true". The Crown then said: "You will recall that the police found four more live bullets inside that backpack and they also found a silencer. No proof here that the silencer was used. Certainly, according to the ballistics expert, Mr Van der Walt, a silencer that was suitable to use with that sawn off 22 rifle. The silencer was not on the rifle when the police arrived at the premises that morning, but it's a good question you might think, members of the jury, why did the accused have a silencer, together with the ammunition and that rifle? " (emphasis added) 39 The Crown reminded the jury that the appellant had acquired the rifle two months before the shooting and that he got it because of the victim, intending, to "bring it out and wave it around". The Crown questioned the credibility of that explanation saying: "The evidence is that on previous occasions he had been able to get [the victim] to back down. You might think that what he said about using the gun, to wave it round and get [the victim] to back down, is pretty strange considering that he has also got ammunition and a silencer. On this occasion the evidence is that he didn't use the gun to try and get [the victim] to back down, wave it around. He didn't even let [the victim] know that he was in the dark lounge room with a loaded rifle. The accused … told the police in the interview that when he and Ms Kolster heard the noise at the back of the house that morning they knew that it was [the victim]. Mr Zoef said he assumed it was him. Zoef knew that [the victim] was violent and aggressive and for some reason he simply lets Ms Kolster go out on her own, two rooms towards the back of the house, to deal with this violent aggressive man that she's had so much trouble with for years and weeks before this incident." (emphasis added) 40 The Crown put to the jury that the appellant had had plenty of time to get out of the house. It suggested that the appellant could have left the house as soon as he assumed that it was the victim making the noise at the back of the house. The Crown also challenged the appellant's explanation that he had not wanted to move in case he made a noise which might alert the victim to the fact he was in the lounge room. The Crown contrasted that statement with the evidence that the appellant had moved when he was in the lounge room both from the position where he was standing at the doorway listening to the exchange between the victim and Ms Kolster, to obtain the rifle from his backpack and then back across the room to the position from which he fired the shot which wounded the victim. He drew the jury's attention, in this respect, to the sketch the appellant had drawn during the record of interview demonstrating the appellant's movements within the lounge room during the period in which, according to his record of interview, he had been too scared to move in case the victim heard him. 41 In closing his address the Crown Prosecutor said: " … the Crown says that in the circumstances of that particular night the accused Zoef had that rifle for one reason and that was in order to deal with James Carberry … whom the accused expected would be returning to the premises …" 42 Counsel for the appellant opened his address to the jury, by disparaging the quality of the sawn off rifle. He criticised the Crown's submission that the shooting had been planned, drawing the jury's attention to the poor quality of the rifle and the small amount of ammunition with which it had been loaded. He said: "If you're going to shoot anybody as part of a plan you'd reckon you'd get something better than this heap of rubbish … the suggestion is we've got this as part of a plan and that's what the Crown opened on, that there was a plan. Ms Kolster and Mr Zoef planned this … So if it's a plan we must be pretty sure of ourselves, we only bothered to put three out of seven cartridges in the mags …" 43 The remainder of his address focussed on the issue of self-defence. He emphasised the threat the appellant perceived the victim posed. He emphasised the speed with which the events had occurred on the evening. He made much of the unusual circumstances in which the appellant had found himself with an aggressive entrant moving speedily through a dark house and apparently coming towards the appellant. He emphasised the fact that the appellant was scared of the victim, a fact of which the victim was aware. 44 In relation to the Crown suggestion that the appellant had the opportunity to leave the house, counsel for the appellant said: "… in your own house, 2 o'clock in the morning, with all doors and windows locked, you've got to hope that his bloke does not see you legging it and doesn't catch you legging it. That seems to be the proposal, in your own house, this violent man has broken in again or at least broken in this time, broken the window a week before, you can't hear your girlfriend's voice, it's gone very quiet, she's gone very quiet and you're supposed to run away in your own house, hope that you can get the key in the deadlock - its going to be a dexterity test - hope you can get the key in the deadlock get the front door open - it's a matter for you ladies and gentlemen, I think there is a screen door - get the screen door open because as I said all the doors and the windows are locked, get out into the darkened streets of Bexley and hope that you can outrun this bloke who played all these years in the centres, hope that you can outrun him assuming you can even get to the front door. What the Crown is asking you to engage in, the thought processes or make those forecasts, is to think like it's just a suggestion here in the court room, not think like it is 2 o'clock in the morning, in your own house, this bloke is coming through the door and you know that you have been this night … sleeping with his missus and you know pretty obviously that he knows now, if he hasn't worked it out he certainly going to work it out when he turns the light on, you're standing there next to the bed where Rachel sleeps and we're going to what, to run away or talk him out of it. Easy to say 'he could have done this, should have done that'. It's not a big house ladies and gentlemen, in reality how much time does anybody have to think about what they are or not going to do? … All we know it is 2 o'clock in the morning and this bloke is coming at us fast … the time Mr Zoef has got to make any decision is miniscule, it's seconds to what he is going to do and not going to do and you know the sequence of events, you've heard the evidence of the background, what's in his mind, you've heard the evidence of the noises, banging, the talking, the lull, can't hear Rachel. That's the timeframe, they're the circumstances and it is a very small timeframe that's he's got … I don't think - it's a matter for you - in those circumstances that standing up, 'look Jim its not as bad as it looks is going to get you far … Mr Zoef didn't wait to find out and the Crown are going to have to prove beyond a reasonable doubt that was not reasonable for him to do in those circumstances … they have no prospects." 45 Towards the close of his address counsel for the appellant again ridiculed the Crown case that there was a "master plan", noting that after the shooting Ms Kolster had called the ambulance for the victim and the appellant had gone outside the house to look for it. 46 Counsel for the appellant did not mention the silencer in the course of his closing address. 47 A copy of a document containing the trial judge's proposed directions on, inter alia, the issue of self-defence was given to counsel for the Crown and the appellant prior to the summing up for their comment. Prior to the summing up both counsel indicated there were no changes required to the proposed directions. A copy of the document was also provided to the jury. 48 In his summing up, the trial judge drew the jury's attention, on the issue of self-defence, to the individual's right to defend him or herself as well as to defend others. In relation to the written directions he had given them concerning self-defence he said: "In the circumstances of this case the accused had a right to defend himself and Ms Kolster by shooting Mr Carberry with the .22 if he believed that was necessary in order to defend himself or Ms Kolster and if what the accused did, by shooting Mr Carberry, was a reasonable response in the circumstances as he perceived them to be." 49 Dealing with the Crown's case, the trial judge said: "The Crown case, according to the Crown Prosecutor, is that the accused had the rifle and the ammunition because he and Ms Kolster expected Mr Carberry to come back that night. He asked rhetorically 'why was it that the accused had the silencer', the silencer that he did not mention to police in that interview. " (emphasis added) 50 His Honour pointed to the significance of the victim's physical size and the evidence concerning his previous acts of violence as being relevant knowledge which the appellant would have had in mind when the victim entered his house on the night of the shooting. He directed the jury that those matters were relevant both to the question whether the appellant believed when he shot the victim that it was necessary for him to do so in order to defend himself or Ms Kolster, as well as being relevant to whether the shooting was a reasonable response to the circumstances as the accused perceived them to be. 51 The trial judge also drew the jury's attention to the atmospherics of the evening, as the accused had explained them to the police and observed: "Calm reflection cannot always be expected in a situation as the accused found himself to be in." 52 The trial judge made fleeting reference to the issue of a "plan" in the course of his summing up, simply referring to the way the Crown and counsel for the appellant had put their respective arguments on this point. 53 Counsel for the appellant did not complain about the reference to the plan or the silencer in the Crown Prosecutor's address nor seek any re-directions in relation to the summing up.

Grounds of appeal 54 The appellant relied upon the following grounds of appeal: 1. Evidence of the presence of a silencer in a bag in the appellant's home was wrongly admitted.

There was no evidence of a "plan" between the appellant and Ms Kolster and this should have been withdrawn from the jury's consideration.

The written directions on self-defence had the capacity to be confusing, as were the oral directions to the jury, causing a real risk that there has been a miscarriage of justice.

Grounds one and two 55 The appellant addressed grounds one and two together as the evidence of the silencer was admitted as evidence of the "plan" to shoot the victim. 56 Mr Byrne SC, who appeared with Ms Bashir for the appellant on appeal but not at trial, submitted that there was no evidence at trial of any agreement between the appellant and Ms Kolster either to shoot the victim or obtain a shotgun. Although his written submissions addressed these grounds on the basis that the Crown case at trial was of a plan between the appellant and Ms Kolster, he accepted that the Crown case had been run in the alternative: first, on the basis that there had been a joint plan between the appellant and Ms Kolster to injure the victim and, secondly, that there was merely a plan by the appellant himself to injure the victim. Notwithstanding that concession, Mr Byrne contended that, whichever way the Crown case was put, the silencer was not relevant. If it was relevant, he argued that evidence of its possession should have been excluded as a matter of discretion. He submitted that evidence of the silencer tempted the jury to engage in impermissible speculation. 57 Mr Byrne submitted that there was no evidence of the circumstances in which the sawn off rifle was obtained apart from answers in the appellant's ERISP that he had had the firearm "since this started happening … [for] maybe two months". He argued that there was no evidence that the appellant and Ms Kolster had planned to shoot the victim and no evidence of them "laying in wait" on the night. He drew attention to the victim's evidence that his visit to the appellant's home at 2 am in the morning of 25 November 2001 was a surprise. 58 Following the close of the Crown case, the jury asked "was anyone questioned regarding whether the silencer was used when the gun was fired". The trial judge directed the jury that "the answer to that question is 'no' because the silencer was only located after the interview with Mr Zoef had taken place …". Mr Byrne complained that the trial judge did not also direct the jury that there was no evidence that the silencer had been used. He submitted that it was apparent that the jury was engaged in speculation concerning the use of the silencer and that, that too, indicated the danger of admitting evidence about the silencer. 59 Mr Byrne also submitted that the trial judge erred in failing to consider and apply s 137 of the Evidence Act 1995 to exclude evidence of the silencer as a matter of discretion. Rule 4 prima facie applies to this aspect of the appellant's argument, the appellant's counsel not having relied upon s 137 during the argument about the admissibility of the silencer. 60 Mr Byrne's primary contention was that the evidence of the silencer was not relevant. While he acknowledged that counsel for the appellant at trial had not referred to s 137, he argued that counsel's assertion on the first day that the prejudicial effect of evidence of the silencer outweighed its probative value, was a sufficient submission that the trial judge should consider exercising his discretion to exclude evidence of a silencer if he otherwise considered it relevant. 61 Mr Byrne submitted that the trial judge erred in ruling that the evidence of the silencer was relevant "because the jury could use that legitimately as tending to suggest that there was a plan to shoot Mr Carberry other than in self-defence". He argued that the fact that there was a silencer, in the complete absence of any evidence connecting the use of the silencer with the incident with which the appellant was charged, even accepting that the silencer was capable of being used on the gun in question, could not constitute evidence of pre-planning on the part of the appellant. Mr Byrne also criticised the trial judge's reasons on the admissibility of the silencer as themselves amounting to speculation as to how the silencer might have been used. 62 He defended the failure of counsel at the trial to raise s 137 specifically with the trial judge at the stage his Honour delivered the ruling on the admissibility of the silencer on the basis that counsel could reasonably have formed the view that the trial judge had considered all aspects of admissibility, including that flagged three days before. 63 Mr Byrne argued that the Crown Prosecutor's rhetorical question during his address, "… it's a good question you might think, members of the jury, why did the accused have a silencer, together with the ammunition and that rifle?", and the trial judge's reference to that part of the Crown's address emphasised the danger of admitting evidence of the silencer, this was because, he contended both passages invited the jury to speculate about why the appellant had the silencer as well as the ammunition and the rifle. He argued these passages demonstrated that the way in which it was used was capable of causing the appellant significant prejudice. 64 Mr Byrne accepted that the appellant faced difficulty in challenging this aspect of the summing up as it had not been the subject of an application for redirection at trial. I would also note, as would be apparent, that there was no complaint at trial by counsel for the appellant about the Crown Prosecutor's address, nor any attempt by counsel for the appellant, to deal with it in his address to the jury. 65 Finally, Mr Byrne submitted that the real danger of admitting evidence that the appellant was in possession of a silencer, in the absence of a direct connection between that item and the offence with which he was charged, was that it was precisely the kind of material which was likely to be used adversely and unfairly against him. He complained that in such circumstances the primary judge's failure to exclude the evidence, whether on the issue of relevance or by the exercise of his s 137 discretion left the appellant exposed to the potential that the evidence would be used against him in a prejudicial way. He also contended that if the silencer was admitted, it should have been the subject of specific directions different from those which were given. He did not elaborate on the content of those alternate directions. 66 The Crown submitted that the evidence about the silencer was relevant to its case that the appellant had planned the shooting, in the sense that he had made up his mind to shoot the victim before the night of the offence. The Crown submitted that there was sufficient evidence to go to the jury on the planning issue based upon the appellant's answers in his record of interview regarding his conduct both before and on the night of the shooting. That evidence (apart from the evidence relating to the silencer) included the facts that he purchased the rifle intending to intimidate the victim, that he and Ms Kolster slept in a concealed area with the rifle nearby, that there had been no violence towards the appellant by the victim at any time, that on the appellant's account of the events immediately before the shooting he had the time and opportunity to leave the house and seek help rather than pick up a rifle, load it and wait for the victim, that the victim was unarmed on the night and that the appellant did not hear him threaten anyone on that night, the fact that the appellant did not warn the victim that he was armed before shooting him and that he shot not at the victim's legs but at the upper part of his body. 67 The Crown argued that it was not necessary that it establish a joint criminal enterprise, agreement or plan between Ms Kolster and the appellant in order to advance the case against him alone. It was necessary to do so in the case against Ms Kolster because that was the only basis upon which she could be criminally liable in respect of the offence the subject of the joint trial. Once the jury was discharged in the trial of Ms Kolster, the only evidence of planning relied upon by the Crown in respect of the appellant was the evidence relevant to his own prior plan or intention to shoot the victim. In these circumstances the Crown contended there was no miscarriage of justice occasioned by the way in which the Crown opened or closed the case on this issue. 68 The Crown submitted that evidence of the silencer was admissible as going to the appellant's pre-existing state of mind or intention as to what he was going to do with the gun and his attitude towards the victim. It argued that even the appellant's account supported the proposition that there was a degree of pre-planning involved in the purchase of the rifle coinciding, as it did, with the difficulties which had arisen concerning the victim's behaviour. As the Crown pointed out, the appellant explained to the police that he had purchased the rifle to use it to threaten or intimidate the victim. The Crown argued that the fact that the silencer which was found fitted the rifle which the appellant had purchased was cogent evidence relevant to the jury's consideration of the issue of self-defence. The Crown disputed the proposition that the silencer could not be used in the shooting because it was damaged. Rather, it pointed out, that the ballistics expert had only observed damage on the silencer after he had fired the rifle with it attached six times. He had been unable to say when the damage had occurred. 69 The Crown also pointed out that, when sentencing the appellant, the trial judge had found that the jury's verdict was not based on the issue of pre-planning or intention but, rather, on the reasonableness of the appellant's conduct on the night the offence was committed. Accordingly, the Crown submitted, even if the appellant was correct that the evidence concerning the silencer was inadmissible for any reason, it had made no material difference to the outcome of the case if one accepted the findings of fact upon which the trial judge said the verdict was based. 70 The Crown argued that the Crown Prosecutor's closing address had not invited the jury to speculate about the use of the silencer rather, the Crown contended, possession of the silencer which fitted the rifle used to shoot the victim was evidence the jury could evaluate in considering whether the appellant was acting in self-defence on the night in question, or whether he was simply carrying out his intention, formed at an earlier time, to shoot the victim. 71 The Crown also contended that the fact the jury asked whether anyone was questioned regarding the use of the silencer on the night was not evidence suggesting it might speculate about that issue but, rather, demonstrated the jury was seeking directions as to the available evidence. The Crown argued no particular further directions were required in respect of this aspect of the evidence beyond the answer given to the jury by the trial judge. 72 Insofar as the appellant sough to rely upon s 137 the Crown argued rule 4 applied. It contended that the trial judge was entitled to assume that the matters raised when the argument about admissibility of the silencer took place were the matters relied upon, whatever may have been foreshadowed some three days earlier. The Crown argued that the application made by the appellant's trial counsel was based solely on the relevance of the evidence. His submission was effectively that there was no evidence of planning and no evidence that the silencer was used on the night. 73 The Crown also submitted that the appellant had not, in any event, demonstrated that the danger of unfair prejudice outweighed the probative value of the evidence of the silencer: R v Polkinghorne (1999) 108 A Crim R 189 at 197 - 8 per Levine J.

Conclusion: grounds one and two 74 In my view the trial judge's decision to allow the case to go to the jury on the issue of planning and to admit the evidence of the silencer was correct. 75 It should be pointed out that counsel for the appellant did not ask the trial judge to withdraw the issue of planning from the jury, nor, as I have observed, did he complain about any aspect of the Crown's address or the summing-up when dealing with the matter. Accordingly, although the Crown did not advert to this, rule 4 applies to ground two. 76 Furthermore, ground two deals with the issue of a plan between the appellant and Ms Kolster. It does not complain of the case the Crown advanced that possession of the silencer was evidence of planning by the appellant alone. Once Mr Byrne acknowledged the alternative basis upon which the Crown case had been put, the debate about the planning issue was subsumed by the debate about the admissibility of the silencer. I shall deal with these two grounds of appeal, therefore, on this basis. 77 The evidence of possession of the silencer, in my view, was relevant to the jury's determination of the question whether or not the appellant had acted in self-defence. The appellant's possession of the silencer tended to support the proposition that he had planned to shoot the victim at some stage and that, when he did so, he intended that the sound the rifle made when fired could not be heard. I agree with the trial judge that the jury could use the presence of the silencer as tending to suggest that there was a plan to shoot the victim other than in self-defence. The jury could use the possession of the silencer, as it could the possession of the rifle, as evidence that the appellant had determined to shoot the victim prior to the night of the offence. 78 I would not allow the appellant to complain about the trial judge not excluding the evidence pursuant to s 137. The appellant was represented by competent counsel, who clearly did not believe by the third day of the trial that he could advance any argument against the admissibility of the silencer other than relevance. 79 Nor, in any event, am I of the view that admission of the evidence concerning the silencer would be "an irregularity … which is such a departure from the essential requirements of the law that it goes to the root of the proceedings" so as to attract a grant of leave for the purposes of rule 4: see Tripodina & Morabito v R (1998) 35 A Crim R 183 at 195; see also R v Abusafiah (1991) 24 NSWLR 531 at 536 per Hunt J (with whom Gleeson CJ agreed and with whose reasons Mahoney JA generally agreed). I do not accept that, even if it was open to the appellant to complain about the trial judge's failure to consider s 137 that would have led to the evidence being excluded. In order to attract an exercise of the s 137 discretion it would have been necessary for the appellant to persuade the trial judge that admission of the evidence concerning the silencer would have led to "prejudice which [was] unfair because there [was] a real risk that the evidence [would] be misused by the jury in some unfair way": R v BD (1997) 94 A Crim R 131 at 139. As McHugh J said in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [91]: "[E]vidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted." 80 I do not accept that evidence of the silencer caused the jury to engage in impermissible speculation. Like the rifle and the bullets (to which the appellant did not object) it was evidence that the appellant had conceived a plan to shoot the victim earlier than the night of the offence. It was legitimate for the jury to consider its significance in the context of evaluating whether or not the appellant had acted in self-defence. 81 I would reject grounds one and two.

Ground three 82 This ground concerns the appellant's complaint that the written and oral directions on self-defence were erroneous and confusing and caused a real danger or miscarriage of justice. 83 The trial judge gave the jury the following directions concerning self-defence: "It is not for the accused to prove that he was acting in self-defence - you can only find the accused guilty if the Crown proves to you beyond reasonable doubt that the shooting of Mr Carberry was not done in self-defence. It may do this by proving beyond reasonable doubt one or the other of two things, namely:

That the accused did not believe at the time of the shooting that it was necessary to do what he did in order to defend himself or Ms Kolster or

If it is reasonably possible that he did have such a belief, that nevertheless the shooting was not a reasonable response in the circumstances as the accused perceived them. If the Crown fails to prove one or the other of these two matters then the appropriate verdict is one of 'not guilty'." 84 After it had deliberated upon its verdict for a day the jury asked the following question: "Your Honour, with the definition you provided for self-defence, does the Crown need to prove beyond a reasonable doubt both points 1 and 2 or either 1 or 2 to provide a guilty verdict?"

The trial judge then directed the jury that they could find the appellant guilty by being satisfied by either (1) or (2) saying: "The simple answer is 'either', the answer 'either'. I can elaborate on that if you want … " 85 The jury then retired to consider its verdict and returned twenty-two minutes later with a verdict of guilty. 86 Mr Byrne does not complain about either the first or last paragraphs of the self-defence direction. He does argue, however, that the direction that the Crown need only prove one or other of paragraphs (1) and (2) is incorrect - not so much as a matter of law, as I understand the submission, but, rather because of the capacity of this direction to confuse the jury. He contends that the self-defence directions are "notoriously difficult to put in simple terms". He contends that it was not made sufficiently clear to the jury that they should consider paragraphs (1) and (2) sequentially. 87 Mr Byrne submitted that it was clear from the jury question as to whether the Crown had to "prove both points (1) and (2)" that the jury did not understand that if the Crown had proved beyond reasonable doubt that the accused did not have a belief that self-defence was necessary, this was not compatible with the reasonable possibility of him having such a belief. He contended that the trial judge's further direction had not clarified this important matter. 88 Mr Byrne accepted that this ground involved a question of interpretation or impression of the overall impact of the trial judge's directions but argued that the way in which the directions concerning self-defence were put was capable of confusing the jury. The appellant submitted that there was a real danger that the confusion apparently caused by the directions had led to a miscarriage of justice.

Conclusion: ground three 89 Rule 4 also applies to ground three. There was no objection to the trial judge's directions concerning self-defence by the appellant's trial counsel when his Honour distributed those directions prior to his summing-up. There was no request by the appellant's trial counsel for re-directions on self-defence despite being given a specific opportunity to raise any matters with the Judge following his summing-up. 90 Further, when the jury asked the question in relation to self-defence during the course of its deliberations, there was some discussion between the appellant's counsel and the trial judge in respect of that question, however no application was made by the appellant's counsel for any corrections or re-directions in respect of the answer provided by the trial Judge. 91 In my view the appellant should not be given leave to argue this ground of appeal. Rule 4 recognises the commonsense proposition that the fact that no objection has been taken to the manner in which the trial judge summed up to a jury is "cogent evidence … in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done": Tripodina & Morabito v R (1998) 35 A Crim R 183 at 191 per Yeldham J (with whom Carruthers and McInerney JJ agreed). 92 In any event, in my view, the trial judge correctly directed the jury to look first to whether the Crown had proved beyond reasonable doubt that the accused did not believe at the time of the shooting that it was necessary to do what he did in order to defend himself or Ms Kolster, and, then, to consider that, if it was reasonably possible that the appellant did have such a belief, whether the Crown had proved beyond reasonable doubt that, nevertheless, the shooting was not a reasonable response in the circumstances as the accused perceived them. In my view the trial judge's directions made it sufficiently clear that the jury should consider points (1) and (2) sequentially. If they did not, that point was clarified in the redirection the trial judge gave. 93 The direction the trial judge gave on the issue of self-defence was that suggested for use in the Judicial Commission of New South Wales' Criminal Trial Courts Bench Book (see [6-460]). While, of course, such directions are not immune from appellate review nor binding on a trial judge (see Chief Justice's Foreword to the Bench Book; http://www.jc.nsw.gov.au), in my view this direction accorded with the law (see, too, R v Katarzynski [2002] NSWSC 613 at [22] per Howie J). 94 I would reject ground three.

Ground four 95 The appellant's final ground of appeal complains that the verdict was unreasonable in that it was not open to the jury to find beyond reasonable doubt that he did not have a reasonable belief that it was necessary to shoot once at the victim's silhouette in order to defend Ms Kolster and himself. He also contends that it was not open to the jury to find that to do so was not a reasonable response to the circumstances as he perceived them to be. He contended that the Court should conclude that it was not open to the jury to be satisfied beyond reasonable doubt that he was not acting in self-defence when he shot the victim. 96 The appellant essentially relies upon the following propositions to make good this ground of appeal. 97 The appellant and Ms Kolster were disturbed in the early hours of the morning by a person the appellant knew to have acted violently towards Ms Kolster and her children, a person who was angry that Ms Kolster had left him and a person who would be concerned to inflict harm on the appellant if he found out about their relationship. The appellant also relied upon the fact that he was scared of the victim, that the victim was aware of this and that the victim was physically superior to him and that he would have been no match for the victim in a physical confrontation. He drew attention to the fact of the victim entering the house after Ms Kolster had fainted, walking past her and proceeding into the house calling out "Tony" and "I know you're there" in such circumstances that the appellant would perceive that the victim was "coming to get him". 98 He also relied upon the trial judge's remarks on sentence in which he accepted that the victim intended to commit violence upon the appellant and possibly also on Ms Kolster. 99 The Crown submitted that the jury's guilty verdict was not unreasonable. It contended, in essence, that it was reasonably open to the jury to conclude that the appellant had not acted in self-defence in circumstances where he lay in wait for the victim with a loaded rifle for up to three minutes, made no attempt to escape and get help when escape was possible, then shot the victim in the upper part of his body without warning in circumstances where the victim had not attacked or threatened to attack the appellant or Ms Kolster.

Conclusion: ground four 100 Where a complaint is made that a verdict is unreasonable within the meaning of s 6 of the Criminal Appeal Act 1912, the Court is required to determine whether it thinks "that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": MFA v R [2002] HCA 53; (2002) 213 CLR 606 at [25] per Gleeson CJ, Hayne and Callinan JJ, (at [52] - [58]) per McHugh, Gummow and Kirby JJ. The Court is obliged to act with "a measure of restraint … in taking the serious step of setting aside a conviction based on the verdict of a jury": MFA v The Queen (at [51]) per McHugh, Gummow and Kirby JJ. 101 The exercise in which the Court engages when considering a complaint that the jury's verdict was unreasonable was discussed by Hunt AJA (with whom Grove and Hall JJ agreed) in R v Niass [2005] NSWCCA 120 at [7] - [8]: "7. Where the Court is asked by an appellant to exercise this power, it must make its own independent assessment of the evidence, and then consider whether, notwithstanding that as a matter of law there was evidence to sustain that verdict, it was nevertheless open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: Knight v The Queen (1992) 175 CLR 495 at 503, 511; M v The Queen (1994) 181 CLR 487 at 492-495; MFA v The Queen (2002) 213 CLR 606 at [25], [55]. 8. In making such an assessment, the Court must pay full regard to two important considerations - first, that the jury is the body entrusted with the primary responsibility of determining the issue of guilt and, secondly, that the jury has had the advantage which this Court has not had, of having seen and heard the evidence when it was given. Where the evidence appears on a reading of the record to contain discrepancies, display inadequacies, or lack probative force, its apparent lack of credibility may in many cases be explained by that advantage enjoyed by the jury. But, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, this Court is entitled and obliged to act on its own assessment if it is satisfied that, even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: M v The Queen at 493-494; Gipp v The Queen (1998) 194 CLR 106 at [18], [128], [169]; MFA v The Queen at [56]." 102 In this case the advantage the jury had of hearing and seeing the evidence as it was given is diminished to a certain extent by the fact that the appellant did not give evidence but, rather, his account of the evening was communicated to the jury per medium of the electronic record of interview conducted with the appellant on the morning of the shooting. It was not suggested that anything in the appellant's tone of voice during that interview gave the jury an advantage over this Court to which only a transcript of the record of interview was provided. 103 I have set out the matters upon which the Crown relied to establish that it had proved beyond reasonable doubt that the appellant had not acted in self-defence in shooting the victim. Before this Court the appellant's counsel, in essence, repeated the matters put to the jury as to why it should find the Crown had not proved beyond reasonable doubt that the appellant had not acted in self-defence. 104 In my view it was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the accused had not acted in self-defence. There was, as the Crown submitted at trial, evidence that the appellant had prepared himself for any confrontation with the victim by arming himself with the sawn off rifle. On the night of the shooting he clearly anticipated the possibility of the victim returning to the house to ascertain whether the appellant and Ms Kolster were co-habiting. In an attempt to deflect discovery, he had parked his car some three streets away. I accept that the events of the night of 25 November 2001 probably moved with a rapidity which it is difficult to convey to non-participants - a point which the trial judge made to the jury in summing-up. However there was, in my view, a considerable body of material to support the Crown case that the appellant had planned to shoot the victim prior to the night of the offence and that he had executed that plan on the 25 November 2001 in circumstances where he had both the opportunity to avoid a confrontation and in circumstances where the victim had not, in fact, threatened either Ms Kolster or himself that night. 105 In my view this ground of appeal should be rejected.

Conclusion 106 The appeal against conviction should be dismissed. Appeal against sentence 107 I agree with Johnson J, for his Honour's reasons, that leave to appeal against the sentence should be granted, but that the sentence appeal should be dismissed. 108 BARR J: I agree with the order proposed by McColl JA and Johnson J for the reasons given by their Honours. 109 JOHNSON J: I have had the advantage of reading the judgment of McColl JA concerning the appeal against conviction. I agree with her Honour's conclusion that the appeal against conviction ought be dismissed for the reasons given by her Honour.

Sentence 110 The sentences imposed by his Honour Judge Berman SC appear in paragraph 5 of the judgment of McColl JA. 111 The appellant seeks leave to appeal against the sentence imposed for the offence of maliciously inflict grievous bodily harm with intent to cause grievous bodily harm. No challenge is made to the sentences imposed with respect to the firearms offences. 112 The sole ground of appeal with respect to sentence is that the sentence imposed for the offence under s.33 Crimes Act 1900 was, in all the circumstances of the case, excessive and a lesser sentence was warranted by law. 113 A s.33 offence carries a maximum penalty of imprisonment for 25 years. As the Crown observed during submissions, the mental element required for the offence is the mental element for murder in the event that the victim died. 114 Accepting the findings as to the circumstances of the offence as outlined in the remarks on sentence of the learned sentencing judge, the appellant submits that the sentence imposed was excessive. Mr Byrne SC submits that the culpability of the appellant was necessarily lessened by his mental state at the time of the shooting, namely his real fear that the victim was intent on inflicting serious bodily harm on him or perhaps Ms Kolster. His Honour Judge Berman SC said (remarks on sentence, page 7): "I will sentence him on the basis that although he did believe at the time of the shooting it was necessary to shoot Mr Carberry in order to defend himself or Ms Kolster, that shooting was not a reasonable response in the circumstances as the Offender perceived them to be." 115 Particular reference is made by Mr Byrne SC to his Honour's acceptance that the appellant "did not go looking for trouble, trouble found him" (remarks on sentence, page 10) and that "the situation in which he found himself in the early hours of 25 November 2001 was largely the making of others" (remarks on sentence, page 11). There was an immediate expression of regret by the appellant concerning the extent of the injury occasioned to the victim, which his Honour accepted as genuine remorse (remarks on sentence, page 11). 116 Mr Byrne SC supplied the Court with statistical information issued by the Judicial Commission of New South Wales concerning sentences passed for offences under s.33. He did not contend that this material was of any great assistance, observing that it was provided for completeness. This Court has stressed that care is required in the use of sentencing statistics: R v Bloomfield (1998) 44 NSWLR 734 at 739. One of the reasons for this is that bare statistical information says nothing about the facts of particular cases, an aspect which was acknowledged by Mr Byrne SC at the hearing before this Court. 117 The sentencing statistics revealed that a head sentence of 10 years imprisonment or more has been imposed in 16% of the 199 cases of s.33 offences between July 1997 and June 2004. This bare statistic indicates that the sentence in this case was substantial. It must be kept in mind, of course, that the upper limit of sentence is the maximum penalty fixed by Parliament and not the upper limit of the statistical range: R v Poon (2003) 56 NSWLR 284 at 296 (paragraphs 50-51). 118 His Honour did not find "special circumstances" for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999. No challenge is made to this conclusion.

119 The appellant does not submit that any legal or factual error is disclosed in his Honour's remarks on sentence. Rather, it is submitted that, in all the circumstances of the present case, the sentence imposed was excessive and that a lesser sentence is warranted in law: s.6(3) Criminal Appeal Act 1912. Mr Byrne SC submits that the circumstances of the present case are unusual. 120 The Crown submits that the sentence is not manifestly excessive. It is said that the sentencing judge took into account, appropriately, the need to give substantial weight to general deterrence in respect of offences involving the use of illegal firearms to seriously injure others (remarks on sentence, pages 11-12). In addition, his Honour noted that the appellant had three prior convictions for firearms offences, involving possession of a prohibited weapon (one offence in 1994) and possession of shortened firearms (two offences in 1997). Accordingly, the Crown submits that the sentencing judge gave appropriate weight to the need for a sentence reflecting personal deterrence. Finally, the Crown points to the very serious harm done to the victim in this case. The Crown contends that the offence is objectively a very serious one warranting the sentence imposed upon the appellant. 121 It was relevant to the question of sentence that the appellant took steps to acquire a firearm to deal with the victim in the event that the occasion arose (see paragraph 16 of McColl JA's judgment). That occasion did arise in the early hours of 25 November 2001.

122 The joint judgment of the High Court of Australia in Markarian v The Queen [2005] HCA 25 at paragraph 27 emphasises the importance of the discretionary nature of the determination of sentence in a particular case, the fact that there is no single correct sentence, and the flexibility to be allowed to first instances judges to determine what a particular sentence should be. 123 It is an aggravating feature of an offence that the injury caused to the victim by the offence was substantial: s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999. As the inflicting of grievous bodily harm is an element of the offence, the bare fact that grievous bodily harm was caused cannot be treated as an aggravating factor of itself: s.21A(2). However, the nature and extent of the grievous bodily harm in a particular case may be taken into account as an aggravating factor: R v Way (2004) 60 NSWLR 168 at 189-190 (paragraphs 106-107). In this case, the shot caused the victim to fall to the ground immediately as it had irreparably damaged his spinal cord, paralysing him from the chest down (remarks on sentence, page 5). The victim will remain that way for the rest of his life (remarks on sentence, page 6). His Honour Judge Berman SC stated, correctly, that the consequences for the victim "are a very important part in determining the sentence which must be imposed" (remarks on sentence, page 6). 124 The actual use of a weapon constitutes an aggravating factor for the purpose of sentence: s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999. In the present case, given the appellant's history of offending with respect to firearms, the element of specific deterrence was an important factor on sentence. His Honour Judge Berman SC observed, correctly, that the sentence to be imposed should involve a substantial component to reflect general deterrence, given the use of a firearm to inflict grievous injury. 125 The overall sentence was a substantial one, but I am not persuaded that it was outside the legitimate range of sentencing discretion in the sense explained in House v King (1936) 55 CLR 499 at 505. In my opinion, it cannot be concluded that the sentence imposed in this case is manifestly excessive or that any other sentence was warranted in law. 126 I propose that leave to appeal against sentence be granted but that the appeal be dismissed.

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