Judgment
1 SULLY J: I agree with Newman AJ.
2 BARR J: I agree with Newman AJ.
3 NEWMAN AJ: This is an appeal brought by the Director of Public Prosecutions pursuant to section 5(d) of the Criminal Appeal Act 1912 (NSW) against sentences imposed upon the respondent by His Honour Coorey DCJ in the Districts Courts at Campbelltown on the 17th of March 2003.
4 The respondent had been indicted on 2 charges of wound with intent to murder pursuant to section 27 of the Crimes Act 1900 and 2 alternative charges of maliciously wound with intent to do grievous bodily harm brought pursuant to section 33 of the Crimes Act 1900. The respondent having pleaded not-guilty to all counts on the indictment, a trial proceeded. In the event the jury found the respondent not-guilty of the 2 counts of wound with intent to murder but guilty of the two alternative counts of maliciously wound with intent to do grievous bodily harm.
5 At the trial the respondent not only denied that he had committed the acts which were relied upon by the Crown in support of the indictment but also raised self-defence as an issue. Both of these matters were plainly enough rejected by the jury in finding as they did.
6 The maximum sentence stipulated by section 33 of the Crimes Act for the crime of maliciously wound with intent to do grievous bodily harm is 25 years' imprisonment. On both counts His Honour imposed sentences consisting of a head sentence of 6 years with a non-parole period of 2 years and 9 months. His Honour ordered that the sentences be served concurrently.
7 Before this Court the Crown contended that the sentences imposed by His Honour when considered individually were manifestly inadequate and when looked at from the standpoint of totality of sentence even more so.
8 I turn then to the objective facts as found by His Honour.
9 On the 22nd of April 2002 the respondent and his brother were present at the Hoyts Cinema Complex at Mount Druitt. Amongst others present at the complex at the time were two other brothers: Ahmed Marnosh Zikria and Mustafa Zikria. At a time when patrons were leaving the cinema a dispute broke out between, inter alia, the Zikria brothers and the respondent. His Honour found, and there was ample evidence to support his finding, that the Zikria brothers particularly Ahmed Marnosh Zikria were the aggressors in the dispute. The respondent produced a handgun and shot both of the Zikria brothers. Ahmed Marnosh Zikria suffered a bullet wound to his right thigh and had bullet fragments lodged in his right leg with small fractures of the upper femur. His brother Mustafa suffered much more serious injuries as a result of being shot by the respondent. His initial gunshot wound was to his epigastric area. When a surgical procedure was carried out upon him at the Nepean Hospital it was found that the bullet had caused a wound to the right lobe of the liver and a wound to the right lower lobe of the right lung. Mustafa Zikria had a stormy recovery which included complications such as a pulmonary embolus, epilepsy and pneumonia. He was hospitalised for 1 month and 6 days and during 2 of the weeks he was in hospital he was in a coma. Plainly enough the wounds suffered by Mustafa Zikria were very life threatening.
10 In his remarks on sentence His Honour observed as follows:
"I accept the Crown's submission. I accept Mr Amer's submission to the extent that the uncontrollable outbursts in Court are clearly consistent with the description of Marnesh on the night of the offence. Mr Amer reiterates that the delay caused by the Crown's application, although through no fault of the Crown and properly motivated, nevertheless that delay has caused anxiety to the prisoner's family. The Crown reminded me that the witnesses to the incident gave various descriptions of the assault, beg your pardon of the forcing of the prisoner and his brother down the ramp, the Crown took me through those again this morning. The Crown conceded that there were special circumstances in this matter which would warrant my altering the formula in the Crimes (Sentencing Procedure) Act that is the sentencing formula. The Crown reminded me that this is the first time the prisoner has been in gaol and of course the evidence clearly shows that he is making good rehabilitative progress and it seems to me the evidence also shows the prisoner needs a lengthy period of supervision when he is released from gaol. I have reflected upon this matter for some time because of the unusual circumstances of the commission of this crime. It seems to me that basically the sentence would have to be slightly above the mid range but I repeat only very slightly above the mid range because of the unusual way in which this crime occurred, namely the vicious and violent attack by the victims upon the prisoner and his young brother. Were it not for those particular facts the sentence formula would be much greater because of the use of a gun. I think that if I was to impose precisely the mid range that I would be in error and that would be unfair to the prisoner because that would expose him to the risk of a Crown appeal. It seems to me the preferable course is to impose a sentence which is slightly above the mid range, it seems to me that I should make a substantial alteration of the sentence, that is the proportion between the non parole and the full term. I accept Mr Amer's submission that the unusual circumstances of this case do require that I make some adjustment to the sentence."
11 His Honour's reference to the range of sentences was based upon statistics from the Judicial Commission for the crime of malicious wounding with intent to do grievous bodily harm which had been tendered by the Crown.
12 Putting aside any considerations of totality, in my view His Honour fell into error in sentencing the respondent on each of the separate sentences he passed. In both cases, putting subjective considerations to one side, the appropriate sentences should have been at the high end of the range of sentences applicable in this case. I say this for two reasons. First, both crimes involved the use of a handgun. This is not only an aggravating feature identified by the Crimes (Sentencing Procedure) Act but also at common law. In my view it is difficult to think of a more serious aggravating feature when dealing with an appropriate sentence for this crime than the use of a handgun. Because the respondent did not give evidence at the trial neither His Honour nor this Court could or can ascribe any reason to the respondent's actions in bringing a handgun with him to the cinema on the subject night. Second, the wounds suffered by the Zikria brothers, in particular those suffered by Mustafa Zikria, were very serious. Indeed, in the case of Mustafa Zikria the combination of the aggravating feature of the use of a handgun and the severity of the wounds he suffered in my view place the crime committed upon him in the category of the worst type of case. In other words in considering sentence for the wounding of Mustafa Zikria His Honour should have considered imposing the maximum sentence.
13 His Honour dealt with the subjective considerations related to the respondent in detail. As no challenge has been mounted to His Honour's treatment of the subjective considerations I repeat them in full:
"I turn to subjective considerations. The prisoner is a thirty two year old man who lived with his parents before his incarceration on 5 June 2002. He has legal custody of his eight year old son, the prisoner's probation and parole officer said that the prisoner and his parents make a positive or rather give the child a positive upbringing. The prisoner does not know the whereabouts of his former wife. The prisoner and his parents migrated to Australia in 1987 when the prisoner was sixteen years of age. The prisoner has been in constant employment since completing the Higher School Certificate in 1988. He worked as a financial consultant from January 2002. He had hopes of becoming a security officer and was pursuing a course in private investigation and security at the time of the commission of the offences. There has been considerable argument on the question of the prisoner's contrition. Under the heading "attitude to the offence" the author of the pre-sentence report states as follows. He says "the offender agrees with the police facts and he seems to acknowledge the seriousness of the offending behaviour, although he admits the offences occurred, he does not appear to have accepted responsibility for his offending behaviour and does not seem to be aware of the full impact of his actions on the victims. In interviews the offender continually minimised his offences by directing onus on the victims and the threat to himself and his brother. The author is of the view that the prisoner would benefit from anger management programs and or coping in society programs. A report from the area management at Parklea Correctional Centre dates 15 August 2002 stated that "the prisoner has completed a number of courses, including a course in anger management". I have the benefit of a psychological report from the Parklea Correctional Centre, although the opinion is qualified to some extent, the authors of that report express the opinion that there is a low risk of the prisoner re-offending. The authors recommend the prisoner continues with individual and group counselling to develop the ability to solve his problem.