Regina v Barakat [2005] NSWCCA 143 | Case summary

1 WOOD CJ AT CL: I will ask Grove J to deliver the first judgment. 2 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed by Andrew ADCJ in the District Court. 3 The respondent had pleaded guilty to a single charge of discharging a firearm in a public place contrary to s 93G(1)(b) of the Crimes Act 1900 which offence carries a prescribed maximum penalty of ten years imprisonment. His Honour ordered the respondent to enter into a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (the Act) for a period of six months, commencing on the date of imposition of sentence (28 January 2005). It would therefore expire on 27 July 2005. The usual conditions as to good behaviour, notification of change of address and appearance if called upon during the currency of the bond were imposed. 4 It might be noted at the outset that at the first instance hearing the Crown Prosecutor conceded that this particular offence might appropriately be met by a sentence of imprisonment "after the release date in May" suspended pursuant to s 12 of the Act abovementioned. The Crown now recognises a defect in that concession and I will return to it, but a principal focus of its submission in the appeal is that, in the circumstances, what was imposed amounted to very little effectual punishment at all. This can be perceived by reference to the circumstances of the offence and the respondent's history. 5 On the afternoon of Friday 13 October 2000 the respondent was at his home at Dulwich Hill. At the time there was in existence a family dispute and a relative (by marriage) of the respondent arrived at his premises which was a unit in a complex of residences. This person commenced to make loud threats in the direction of the unit occupied by the respondent. These threats were confirmed by neighbours who heard expressions such as "You fucking pricks, you cunts, let me in" and "You're dead". The relative then commenced banging on the front security door as a result of which a neighbour called from a balcony for him to leave. In response he produced a rifle from a duffle bag. Partial protrusion of that weapon from the bag had been earlier observed by others. 6 The would-be intruder continued his attempts to enter the premises and he had reached the stage of breaking glass panels on the front door. The respondent armed himself with a pistol, which, in accordance with agreed facts, he had obtained "because of previous threats made towards (him) and members of his family by (this person)". 7 When the respondent emerged from the premises the intruder had moved to the rear of his motor car. It is further agreed that at that stage the respondent believed that he was retrieving the firearm. Thereupon the respondent fired four shots into the air with the intention of frightening the other into leaving. This was achieved and the intruder drove off at high speed. 8 It is the discharge of those four shots into the air in those circumstances which is the basis of charge. 9 Although police were called, the respondent was neither arrested nor charged. It appears that the intruder was interviewed at some point but denied having been present on 13 October. 10 On 21 December 2001 the respondent was arrested and charged with offences of supplying prohibited drugs. He was convicted and sentenced to imprisonment for four years with a non-parole period of 3 years commencing on 24 May 2002. His first date of eligibility for parole is 23 May 2005. An appeal against sentence was later dismissed. 11 It should be observed that a cousin of the respondent was killed whilst in gaol and the respondent gave evidence against offenders who were convicted of murder and an attempt to murder the respondent. The sentence which the respondent had received in respect of the drug matter took into account assistance to authorities and that, by reason thereof, his sentence is being served in strict protection. 12 As can be deduced from the foregoing, the bond imposed by Andrew ADCJ will be concurrent with full-time custody of the respondent except to the extent that he may be released to parole between 23 May 2005 and 27 July 2005. The court is unaware as to whether a determination of actual date for release to parole has been made. 13 Submissions and counter submissions have been received from counsel for the Crown and for the respondent, and attention has been drawn to the general objective seriousness of the discharge of a firearm, in particular a pistol, in a public place. It must add to the seriousness of any such offence that the public place was in a residential area. On the other hand, there is substance in the submission on behalf of the respondent that, given the threat posed by the intruder who was himself armed, the discharge of shots into the air, which fortunately had the desired effect, was a selection of a relatively safe, although unlawful, option. 14 The learned sentencing judge found that the case was at "the very end of the low end of the scale" and it has not been shown that that finding was not open to him. It was also appropriate for his Honour to take into account (as was further conceded) that the plea of guilty was made at the earliest opportunity, the matter could have been dealt with in the Local Court and that the offence was stale in that it had not been prosecuted for over three years. The charge was not preferred against the respondent until 13 February 2003. 15 I am, however, of the view that the Crown contention that the penalty imposed by his Honour represented virtually no punishment at all is made good, and that, despite the favourable findings open to his Honour, a sentence which imposed virtually no punishment at all should be held to be manifestly inadequate. 16 The current sentence of the respondent will not expire until 23 May 2006 and any liberty enjoyed by him up to that time can be anticipated to be subject to conditions of parole. It would be an additional imposition on the respondent if, during the anticipated period, he was subject to the risks inherent in a suspended sentence. 17 In a written submission to this Court the Crown observed: "The concession by the Crown that there would be no error if a suspended sentence were imposed properly had regard to the delayed interruption to his life by reason of being sentenced long after the offence". 18 In a submission in response this was taken to contend that the Crown was seeking only that the matter be dealt with by way of suspended sentence. This form of sentence is no longer pressed. 19 As I have indicated, I would regard a suspended sentence as a proportionate penalty in the circumstances. However, the imposition of suspended sentence is governed by s 12 of the Act subsection (2) of which provides: "(2) An order under this section may not be made, in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order".

It would not be competent to order a sentence to be suspended pursuant to s 12. 20 The provision precludes suspension of a sentence during such time as any other custodial sentence is in force during both its parole and non parole periods: R v Edigarov 2001 125 A Crim R 551. 21 It would be repugnant to any sense of fairness that an offence committed in 2000 and charged in 2003 should be met with a sentence, even if suspended, commencing after the expiry of sentence in 2006. More significantly, specification of the date of commencement of sentence is governed by s 47 which is in Part 4 of the Act. Part 4 is excluded in relation to sentences ordered to be suspended by s 12 (3). 22 I am unpersuaded that the justice of the situation would make it appropriate to extend the period of the respondent's present custody by an imposition which would postpone his present date of eligibility for release to parole. Such an order is not pressed by the Crown. 23 Nor, however, do I consider that the circumstances should be met by a good behaviour bond pursuant to s 9 to operate for a greater length of time than that ordered in the District Court. As I have observed the respondent, if released, will be subject to parole conditions until the expiry of his current sentence. It is now contended this Court should impose a bond of greater length than the potential parole period. As I have said, for this stale offence, such a course would be, in my view, inappropriate. 24 Although for the reasons given I consider that the imposition in the District Court was manifestly inadequate, in the very unusual circumstances of this case I would exercise the residual discretion of this Court to dismiss a Crown appeal and I would so order. 25 WOOD CJ AT CL: I agree. 26 HOEBEN J: I agree. 27 WOOD CJ AT CL: The orders of the Court will therefore be as proposed by Grove J.

Regina v Barakat

At a glance

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Before

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Judgment (12 paragraphs)

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