Regina v Robert Andrew Livingstone

Court of Criminal Appeal (NSW)|2004-04-15|Before: Sully J, Dowd J, Smart AJ

INTRODUCTION 1 In June 2003 the appellant, Mr. Livingstone, stood trial in the Lismore District Court before his Honour Acting Judge Ducker and a jury. The appellant was arraigned upon an indictment containing three counts. 2 Count 1 charged that on 2 March 2002 the appellant had fired a point 22 calibre rifle into a dwelling house at 6223 Summerland Way, Whiporie. Such an offence contravenes section 93H(2) of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for 10 years. 3 Count 2 charged that on 8 March 2002 and at the same location the appellant maliciously discharged a point 22 calibre rifle with intent to do grievous bodily harm. Such an offence contravenes section 33A(1) of the Crimes Act. It attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. 4 Count 3 was charged in the alternative to Count 2. It charged that on 8 March 2002 and at the same location the appellant fired a point 22 calibre rifle into the same dwelling house at 6223 Summerland Way. 5 The appellant, when thus arraigned, pleaded guilty to Count 1 and not guilty to each of Counts 2 and 3. On 11 June 2003 the jury returned a verdict of guilty on Count 2. The appellant stood for sentence accordingly on 31 July 2003. He was sentenced on Count 1 to imprisonment for 4 years with a non-parole period of 2-1/2 years; and on Count 2 to imprisonment for 7 years with a non-parole period of 4 years. The sentences were partly cumulated so as to yield an overall result of imprisonment for 8 years with a non-parole period of 5 years. 6 The appellant challenges his conviction; and he applies simultaneously for leave to appeal against the sentences. 7 The notified Grounds of Appeal are: " A. Appeal Against Conviction 1. The trial judge erred in his directions as to the elements of Count 2. 2. The trial judge erred in failing to direct the jury that evidence of a conversation between Scott Maclean and his brother could not be used to prove a fact in issue in the trial. 3. The trial judge erred in the directions to the jury regarding the use that could be made of the appellant's account of what he did on 2 March 2003. 4. The conviction on Count 2 was unreasonable. B. Appeal against Sentence 5. The sentencing judge erred in his finding of fact regarding Count 1. 6. The sentencing judge erred in the discount for the plea of guilty regarding Count 1."

The Events of 2 March 2002 8 Mr. Scott John Maclean, (hereinafter "the complainant"), and the appellant were near neighbours at Whiporie in country New South Wales. They had been neighbours for some years. Their relations had been originally cordial but had deteriorated markedly by the beginning of 2002. The complainant gave evidence that on 5 February 2002 he had received a phone call from the appellant. The appellant asked the complainant why he, the complainant, had been ringing up the appellant's mother. The complainant asked the appellant what he was talking about. According to the complainant: "I was lucky to get that statement out because the rest of the conversation I never got a word in, and then he just screamed, he was pretty erratic on the phone". The conversation lasted for a minute or a minute and a half; and it culminated in the appellant's saying to the complainant: "I should come down there and roll you", and then hanging up on the complainant. 9 The complainant gave evidence of having received a second telephone call from the appellant, this time on 12 February. The appellant allegedly said to the complainant: "Why have you put something in my tractor, mower and truck, like - like you did three years ago. Don't sleep easy at night. I'm coming to kill you". According to the evidence of the complainant, the appellant was, once again, "very, very agitated, screaming". 10 Thereafter, and during the period until 2 March, the complainant gave evidence of a number of occasions upon which the padlock which secured the gates giving access to his property had been glued so as to be inoperable. 11 The complainant gave evidence that on 2 March, a Saturday, he was at home. It was about 8 a.m. He was in his main bedroom on the north side of his house. It was raining heavily, and the complainant was going about various household chores. He heard, suddenly, three loud gunshots. He went "gingerly" out through a door on the eastern side of his house, intent on trying to work out the direction from which the shots had come. His dogs were highly agitated and were barking in a north-easterly direction. Another two shots were heard "and they definitely came from the north-east direction". The complainant retreated back inside his house; and as he did so one further shot rang out, "and it appeared that it may have hit the roof, it hit something above me……" . 12 The complainant "tried to analyse what the situation was". He was, understandably it might be thought, very perturbed by what had happened; and eventually he telephoned the Casino Police Station. He made the call about an hour or an hour and a half after the shooting incident. He spoke to a police officer to whom he gave an outline of what had happened; and that officer suggested that next time the complainant was in town he call into the police station and make a formal statement. 13 At about 7.50 p.m. on that same day the complainant received a telephone call. He lifted up the receiver and said "hello". Nobody answered and the caller "just hung up". The appellant, when subsequently interviewed by investigating police, admitted that he had been responsible for the gluing of the padlock securing the main access gates to the complainant's property. The appellant's plea of guilty was, of course, an admission of his having fired the shots heard by the complainant on 2 March.

The Events of 8 March 2002 14 The complainant gave evidence that early in the afternoon of this day, a Friday, he decided to climb onto the roof of his house for the purpose of painting around certain windows that were set into the roof. At some time in the vicinity of 2.45 p.m. he was seated on a verandah on the eastern side of his home. He heard three gunshots coming from the south-east. There was a pause of about a minute, and then a fourth shot rang out, probably from the same direction "and the same sort of distance". Very shortly thereafter the telephone rang. The complainant answered it, and whoever was on the other end of the line "hung up like very abruptly like throw it down". 15 Telephone records which were admitted into evidence at the trial showed that the appellant had made a telephone call to the complainant's phone line at 2.47 p.m. 16 About 20 minutes later the complainant got a ladder and began to climb it to the position on the roof where he was intending to work. He described as follows what then happened: "I was climbing the ladder and I was just about to step onto the roof when four gunshots rung out from behind me and hit the iron about a metre - metre and a half in front of me, I actually saw one tear into the roof." 17 These shots came from the north-east. When the shots were fired the complainant was almost on the roof facing south; and the shots rang out from the north-east, that is to say from behind the complainant. The complainant, who said that he was 6 feet 6 inches tall "looked in the direction of where the bullets came from and I saw Andrew Livingstone standing in the north-east paddock". The appellant was about a hundred metres away; and his body was visible to the complainant "probably from the knee up". The complainant could see the appellant's torso, arms and head. The appellant "was just looking directly at me". The complainant did not notice any weapon being carried by the appellant. 18 The complainant, understandably it might be thought, "was in a blind panic basically because I was frightened that he would come across the paddock and finish the job that he looked like he was intending to do". After some time inside the house wondering what he was going to do, the complainant in fact telephoned his brother in Sydney. They had a conversation to the detail of which it will be necessary to return in connection with Ground 2. Thereafter the complainant telephoned the police who arrived at his property at about 7.00 p.m. They escorted the complainant back to the police station in Casino and he made a statement. At the suggestion of the police, he did not return immediately to his property but drove down to Sydney. The complainant did not return to his property until 14 March. 19 Telephone records which were admitted into evidence at the trial corroborated the complainant's evidence as to the telephone calls made by him, both to his brother and to the police. 20 Preliminary police inspections of the complainant's property were made on 14 March. Those inspections disclosed five separate areas of damage. There is a hole in the wall above a window and four holes in the plaster-board above the same window between the wall and the roof on the north-western side of the house. On the north-west side of the roof there were three separate holes in the corrugated iron near the solar panels. The relevant inspecting police officer was of the opinion that the damage appeared to be consistent with bullets all coming from the same direction. 21 The appellant was arrested on 19 March and a search warrant was executed at his property. He directed police to a loaded point 22 calibre Magnum bolt-action rifle with telescopic sight attached. The police found as well a plastic bag containing a quantity of point 22 calibre ammunition. 22 On 20 March a more thorough police investigation was carried out at the complainant's property. A bullet was located inside damaged brickwork in the north-western section of the wall of the house. Subsequent forensic examination of that bullet was inconclusive. There were difficulties in the way of a detailed examination within the roof. 23 On the following day, 21 March, the police returned to the complainant's home and removed the tin roof so that they could look into the rafters of the building. Near the solar panels, where the complainant allegedly was standing at the time of the shooting on 8 March, the police found three point 22 calibre projectiles. Subsequent forensic examination established that the three bullets found in the roof had been fired by the rifle that had been found at the appellant's home on 19 March. Forensic examination of the telescopic sight found it to be in working order but the rifle itself, when tested indoors over a distance of 25 metres, was found to fire to the right and a little low. 24 Other forensic evidence was to the effect that the bullet holes in the fibro sheeting had been made from shots fired closer to the house than the shots which had caused the damage to the corrugated iron of the roof. A thorough search was made in an attempt to locate spent cartridges; but none were found. In due course the police conducted an electronically recorded interview with the appellant. During the course of that interview the appellant denied categorically that he had fired at the complainant's home either on 2 March or 8 March. He admitted that he had made various telephone calls to the complainant, hanging up as soon as the phone was answered.

The Defence Case at Trial 25 The appellant gave evidence at trial. He admitted having fired shots at the complainant's house on 2 March; and he admitted that he had lied about that matter to the police. He denied categorically having fired any shots at or towards the plaintiff's house on 8 March. He denied having ever threatened to kill the complainant. He explained his conduct on 2 March as having emerged from a very brief, distant and chance encounter between him and the complainant. He said that this encounter had left him "pretty peeved"; and that he had decided to go down to the vicinity of the complainant's house and see whether he could find him there. He said that he had looked through the scope of his rifle to see if he could in fact see the complainant anywhere; and being unable to do so, had fired one shot at the house; had paused for a few seconds; and had then fired three further shots at the solar panels on the roof of the complainant's house. He agreed in cross-examination that the complainant had not been onto his, the appellant's, property on the day; and had not done anything in particular to antagonise him on that morning. 26 As to 8 March, the appellant's case was that he had been at home all day with his then girl-friend. He alleged that he had only been outside his house briefly while working in the garden and with his chickens, and that he had never left the immediate vicinity of his home. The appellant conceded that he had made five telephone calls to the complainant over a 3 minute period on 9 March; but he denied that his motive for having done so was that of checking whether the complainant had been intimidated into leaving his home because of the events of the preceding day. He agreed that he had glued the padlock on the main access gates to the appellant's property. He agreed that on 11 or 12 March he had again glued the padlock on the main access gates of the complainant's property. The appellant's girl-friend at the relevant time gave evidence which, if accepted, corroborated the appellant's own evidence that he had not left his own home on 8 March except for the domestic purposes previously described. 27 The girl-friend's mother gave evidence of having made a telephone call to the appellant's number at 3.14 p.m. on 8 March; although she could not say positively that she had then spoken to the appellant himself rather than to her daughter. The fact of the call was corroborated by the relevant Telstra records.

Ground 1 28 It was necessary that the charge to the jury respecting Count 2 make plain that the Crown had to prove beyond reasonable doubt: first, that the appellant had maliciously fired any or all of the shots which the complainant had described as having been fired on 8 March; and secondly, that the appellant, when he fired any such shot or shots, had then an intent to do grievous bodily harm to the complainant. These are distinct elements of a charge based upon section 33A(1) of the Crimes Act. It is important that the charge to the jury not confuse that distinctness. There is a very real difficulty in the path of framing a charge that does not so confuse those two distinct elements. That difficulty derives from the definition, to be found in section 5 of the Crimes Act of the word "Maliciously". The section actually reads: "Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime." 29 As long ago as 1990 Hunt J, Finlay and Allen JJ agreeing, criticised trenchantly the draughtsmanship of section 5. Hunt J proposed, in very strong terms, that urgent attention be given by the Legislature to removing completely from criminal statutes the concept of "malice" and by replacing the adverb "maliciously" with some such phrase as "intentionally or recklessly". Reg v Coleman: (1990) 19 NSWLR 467 at 472 A-G. Those criticisms and recommendations have fallen thus far, like the good seed in the Biblical parable on barren ground; and so it is necessary once again to grapple with the semantic ambiguities of section 5 as it stands. 30 It seems to me to be a reasonable construction of section 5 in its present form that an act is done maliciously in the contemplated sense if the act is

done without malice but with indifference to human life or suffering and without lawful cause or excuse; or

done with intent to injure, relevantly, some person or persons and whether in person or in property, and without lawful cause or excuse; or

done recklessly or wantonly. 31 Quite how that conceptual muddle is to be distilled into a coherent and practical charge to a jury in a criminal trial will depend to some extent upon the nature of the issue or issues joined at trial between the Crown and the accused. In a given case it might be possible to deal with the matter in the simple and practical manner suggested by Street CJ in Reg v Safwan (1987) 8 NSWLR 97 at 101B: "It may be that in many cases the directions already given on intent will inevitably cover the same matters that must be established in order to prove the element of 'maliciously'. In such cases there is no reason why the trial judge should not simply say just exactly that and leave the matter without further examination." 32 On that particular point there was no dissent from either of the other members of the particular Bench: Lee and McInerney JJ. 33 The learned trial Judge did not approach the matter in that way. His Honour began the relevant part of his charge to the jury with this instruction: "The essential elements so far as the first charge on 8 March 2002 are concerned are that the point 22 calibre rifle, which is a firearm, was maliciously discharged and that there was an intention on the part of the person who discharged it, that grievous bodily harm be caused." 34 This was, in my respectful opinion, both clear and correct. 35 His Honour then follows on immediately: "Now, malice has two basic meanings, so far as the charge here is concerned. First of all that the conduct was deliberate. That, I do not think, needs any further explanation, it is clear enough. Secondly, the accused may act recklessly; i.e. the accused discharged the firearm recklessly, that is, knowing that injury might be occasioned by the act which he did; knowing that there was risk that injury could be a result of what he did, but he nonetheless went ahead and did the act. Those are the two ways the accused is alleged to have acted maliciously. Either of those two ways would be sufficient to prove malice. They are, I repeat, that the act was done deliberately in order to cause injury or it was done recklessly, that is, being aware of what the consequences might be but nonetheless carrying out the action which he did. The second thing that must be proved is the intent, on the part of the person who fired the rifle - and here we are talking about the accused, Mr. Livingstone - that is the allegation which the prosecution make - that he had in his mind to not just injury (sic) but grievous bodily harm which means really serious bodily harm. That is a subjective matter. It is not what some other person might have thought in the circumstances but what the accused himself thought; what he intended; or what he was reckless about ." (emphasis added) 36 This direction, to say the very least, began to sail in dangerous waters. For it ran the risk of introducing into the charge to the jury the very error which brought down the conviction in Reg v McKnoulty (1995) 77 A Crim R 333. The danger is distilled succinctly in the following sentences from the judgment of Hunt CJ at CL, (Smart and Levine JJ concurring): "The usual direction in relation to such a specific intent is that a person's acts may themselves provide the most convincing evidence of his intention. An intention to inflict grievous bodily harm may be inferred from the nature of the act which is done: ………….. . But that is altogether different from a direction to the effect ………….. that reckless indifference was sufficient." (at 344; authorities cited have been omitted) 37 As the summing up proceeded, his Honour returned more than once to this area of the charge to the jury. Almost at the end of the summing up his Honour gave the jury this direction: "If you have no reasonable doubt that it was the accused who committed the crime, in other words that he was there on that date and he who did fire the weapon, then it would be appropriate to find the accused guilty if you were satisfied on the first of the charges concerning that date that he did so maliciously, that is, deliberately trying to hit ……. (the complainant) …… or did so recklessly, that is, realising the risk and taking the risk notwithstanding, then the verdict should be guilty. If you have any reasonable doubt as to his guilt on the first charge concerning 8 March or on the second charge concerning that date, then you must find the accused not guilty." 38 It seems to me, with respect to his Honour, that this direction is plainly wrong. It is wrong because it simply conflates the two distinct elements of the offence: that is to say, the element of malicious discharge of the firearm and the element of intent to inflict grievous bodily harm. 39 That error having been identified, I have considered whether the case is not one in which the proviso to section 6(1) of the Criminal Appeal Act might not properly be applied. Both the Crown Prosecutor and counsel for the accused at trial made no application for any re-direction about the matters of which complaint is made in connection with Ground 1. I think, however, that the better view of the current law on that topic would not support the use in the present particular case of the proviso. I have in mind in particular the passage in the judgment of this Court, constituted by Gleeson CJ, Kirby P and Grove J in Reg v Whittaker (1993) 68 A Crim R 476 at 484.5, and the authorities there cited. 40 It must follow, therefore, that in my opinion Ground 1 has been made good. What practical consequences should ensue will need to be considered later herein, and after attention has been given to the remaining grounds of appeal against conviction.

Ground 2 41 The complainant's evidence-in-chief was that in the immediate aftermath of the shooting on 8 March he had telephoned his brother who was then in Sydney. The complainant said that he could not remember the precise detail of the conversation, but that "basically" he had said to his brother: "I've just been shot at. I was on the roof and I've just been shot at and I saw the person". 42 That evidence of the complainant was admitted without objection, and without drawing from the learned trial Judge any ruling as to either its admissibility or its use if admitted. The complainant's brother was called at a witness in the Crown case. He confirmed having received a telephone call from the complainant. His recollection was that the complainant had said: "Bruce it's Scott here. I've just been shot at by my neighbour Andy. He's across the road. What should I do?". 43 Shortly thereafter the complainant's brother gave the following evidence: "CROWN PROSECUTOR: Q. You spoke to your brother, the first occasion you spoke to him that afternoon, how would you describe the way that he spoke to you? A. When I spoke to Scott you're referring to, yes, no he was very distressed, he'd been up on the roof painting and someone …….. Q. You said something about the roof, painting? A. He was up on the roof painting his house, getting ready to sell his property and he had shots fired at him. Q. He told you that he was on the roof painting? A. He did, he did. Q. I'd just like to show you another document ………" 44 At that point the learned trial Judge intervened and the following interchange occurred: "HIS HONOUR: Under s 136 of the Evidence Act I restrict that evidence. CROWN PROSECUTOR: Yes your Honour. HIS HONOUR: As to the making of the phone call, not as to the occurrence of the event itself." 45 It is not controversial that the ruling itself was correct for the reason that there was a need to ensure that the jury did not make an impermissible use of the content of the conversation between the complainant and his brother. It was important that the jury understand that evidence of the occurrence of the conversation and of its terms was not admissible to prove the truth of what was asserted in the conversation. 46 The appellant submits that the learned trial Judge, having intervened as his Honour did, ought to have given the jury some proper instruction to the end of ensuring that the jury did understand what was and what was not a permissible use of the evidence about the conversation. The fact is that his Honour did not give the jury any such instruction either immediately upon his Honour's intervening in the way noted above; or subsequently at an appropriate time during the course of the summing-up. Neither the Crown Prosecutor nor counsel then appearing for the appellant applied to his Honour for any such instruction to be given to the jury. 47 In my opinion the failure to give the jury any proper direction as to the section 136 restriction was a significant irregularity. It is significant in that connection that one of the crucial issues at trial was whether the appellant had fired any shot at all on 8 March. The only persons who were alleged by the Crown to have been present at the time of the shooting were the complainant himself and the appellant. The complainant gave evidence sufficient to support a rational inference that the appellant had done the shooting. The appellant categorically denied that he had done any shooting. In the light of that conflict about the central issue of fact, it was, in my opinion, important that the jury understand clearly that the facts asserted by the complainant in his conversation with his brother were not proved simply because the complainant had asserted them in that conversation. 48 It is, of course, vexing that neither of two legal representatives noted the point and made an appropriate application to the trial Judge. That is not, however, sufficient in my opinion to cure what I regard as having been a not insignificant irregularity at trial. 49 In my opinion, therefore, Ground 2 also has been made good.

Ground 3 50 At a point not quite half-way through the summing-up the learned trial Judge gave the jury the following directions: "One of the things that you will be critically concerned with is the credit of the two main people concerned, ….(the complainant) ….. on the one hand who the Prosecution has put forward as an honest, straightforward witness who was not of a physically aggressive kind at all, on the one hand, and on the other hand the behaviour of ……(the appellant)….. who apparently thought it a reasonable thing to do to - or a reasonable 'get square' to behave in the way in which he did on that day. It is a matter for you what conclusions you reach as to those two men." 51 The written submissions of the appellant put succinctly and as follows the complaint that is the gravamen of Ground 3: "20. In the context of the summing up as a whole, the jury would have understood the direction to be inviting them to reason as follows: (1) Even on his own account, the accused acted in an aggressive and excessive manner on 2 March 2003 (thinking it ' a reasonable 'get square' ' to shoot at ….. (the complainant's) house in circumstances where ….. (the complainant) …. had not actually done anything to him. (2) Such 'behaviour' could be used to infer that it was more likely that he committed the offence charged on 8 March 2003." 52 The short answer to that submission is to be found, in my opinion, in two passages at the very beginning of the summing-up. The passages read: "Mr. Livingstone, you may remember, pleaded guilty to one charge on the indictment, namely that on 2 March 2002, at Whiporie in the State of New South Wales he did fire a firearm, namely a point 22 calibre rifle, into a building, namely dwelling house situate at 6223 Summerland Way, Whiporie. As I have told you, it is not necessary for you to return any verdict in that matter because the accused has acknowledge his guilt in relation to that matter. The fact that he has done that must not be used as evidence that would increase the probability that he was guilty of the other charges. That evidence would normally not be allowed. It is only admitted because the evidence concerning the incidents of the 2 March 2002 is relevant to the defence that is being raised in respect of the two charges that you do have to decide, that is whether all the rounds that were fired from the rifle by the accused were fired on 2 March 2002." 53 These directions were, as I respectfully think, both clear in form and correct in substance. They are, in my opinion, a complete answer to the speculative proposition at the heart of Ground 3. 54 In my opinion Ground 3 has not been made good.

Ground 4 55 The relevant guiding principles of law are not in doubt. They are as stated by the High Court of Australia in M v The Queen (1994) 181 CLR 487. 56 The present ground cannot be properly considered in the light of those principles without having some sensible regard to the way in which the case was fought at trial. 57 The appellant's case at trial could not have been simpler. It was his case that he had not fired any shot of any kind in any circumstances anywhere near the complainant on 8 March 2000. It was not the appellant's case that he had discharged his rifle but that he had done so accidentally. It was not his case that he had fired some, but not all, of the eight shots which were described by the complainant in the latter's evidence at trial. It was not the appellant's case that he had fired shots not so much at, but towards the near vicinity of, the complainant. It was not his case, in any sense other than the sense that his plea of not guilty put all the material elements of the charge in issue, that he had in any sense fired shots but without the requisite intent to inflict grievous bodily harm. 58 In those circumstances, the first question for the jury is whether the jury was satisfied beyond reasonable doubt that the appellant did in fact fire some or all of the shots that were undoubtedly fired by somebody on 8 March 2000. Answering that question necessarily involved a careful assessment of, on the one hand the complainant, and on the other hand the appellant. This was quintessentially a matter for the jury at trial. I can see no reasonable basis upon which it could be said that the jury was not entitled to prefer the version of the complainant over that of the appellant. Once that point is reached, then the next question to be asked is whether a reasonable jury properly directed could have been satisfied beyond reasonable doubt upon the whole of the evidence at trial that the appellant, having fired the shots on 8 March, had done so with the necessary intent to inflict grievous bodily harm. A proper direction in that regard would have told the jury simply and clearly that intent is a matter that can be inferred from the acts of the person whose intention is being assessed. Upon the assumption that it was indeed the appellant who fired the shots, I can see no basis for saying that a reasonable jury properly instructed could not have taken the view that doing such a think in the circumstances then obtaining, and in the atmosphere then obtaining, warranted the drawing beyond reasonable doubt of an inference that the shooter did indeed have the requisite statutory intent. 59 In my opinion Ground 4 has not been made good.

The Consequences of Upholding Grounds 1 and 2 60 The Court would order, ordinarily, that the appeal against conviction on Count 2 in the indictment be allowed; that such conviction be quashed; and that there be a new trial on Count 2. 61 There was raised, however, at the hearing of the present appeal the question whether, in the event that the Court might be minded to quash the conviction on Count 2, the Court could properly exercise its powers pursuant to section 7(2) of the Criminal Appeal Act and thereby substitute a verdict of guilty of the alternative offence charged in Count 3 of the indictment, it having been unnecessary in the events that happened at trial to take a verdict from the jury upon Count 3. 62 I have considered that prospect in the light of the definitive guidance given by the High Court of Australia in Spies v The Queen (2000) 201 CLR 603. In paragraph 23 of the majority judgment of Gaudron, McHugh, Gummow and Hayne JJ it is said: "The power conferred by section 7(2) of the Criminal Appeal Act is most likely to be exercisable in situations where the 'other offence' is one which is wholly within the ultimate facts of the offence on which the accused has been convicted and which the court sets aside in the appeal." 63 Assuming a mis-direction on the element of intent necessary to constitute the offence charged in Count 2, I do not see how it could be contended reasonably that the facts which the jury must have found, intent to one side, would not be sufficient to establish beyond reasonable doubt the appellant's guilt of the alternative offence charged in Count 3. In my opinion the Court clearly has power pursuant to section 7(2) to substitute a verdict of guilty on Count 3. 64 That being so, it has to be considered whether the Court, having that power in principle, ought to exercise it in fact. In my opinion the Court should so proceed. First, the appellant does not put a submission to the contrary; and secondly, it is not disputed that the Victim Impact Statement of the complainant discloses a state of affairs personal and particular to him, of which it is sufficient to say that if a new trial can be properly avoided, then that course ought to be taken. 65 For the whole of those reasons, I would favour the use in the present case of the power conferred by section 7(2) of the Criminal Appeal Act. 66 Such an approach entails necessarily the revision of the sentences passed upon the appellant in the District Court. In that connection I can state my own position quite simply. I see no reason to hold that the sentence passed in the Court below upon Count 1, to which the appellant pleaded guilty at the commencement of his trial, should be disturbed by this Court. I would pass a similar sentence upon the substituted verdict and then consider questions of cumulation and concurrence. 67 It was submitted for the appellant that, should the Court quash the conviction and sentence referable to Count 2 in the indictment, then it necessarily follows that the appellant was sentenced upon Count 1 on a basis that did not give him proper credit for his plea of guilty. In that latter connection the learned primary Judge said this: "The offender, …….. obviously had come to the realisation that since the projectiles that were found embedded in parts of the victim's house could be identified as having come from ………… (the appellant's) ………….firearm, he was no longer in a situation of being able to deny having fired shots into that building. Thus I am satisfied he decided to plead guilty to the first count. I am satisfied that his plea of guilty had nothing to do with remorse and nothing to do with an attempt to assist the authorities. I am satisfied that his motive for pleading guilty on the first count was to try to formulate a defence on the second count, namely that he was not there and could not have fired the shots on 8 March, but he had fired a number of shots at the house on the earlier occasion and it was just a question of ….. (the complainant's) ….. not noticing them until he got back up onto his roof." 68 I would myself have thought that if ever there was a case of a forensically opportunistic plea of guilty it was this appellant's plea to Count 1. In my opinion the learned primary Judge was entirely justified in taking the view which his Honour expressed in the passage quoted above. I am of the same view. I do not think that the quashing of the conviction on Count 2 has any bearing at all upon the propriety of the sentence passed upon Count 1 or upon the sufficiency of the reasoning put forward by the learned primary Judge in support of that sentence. 69 As Mahoney JA pointed out in C (1994) 75 A Crim R 329 at 316-317, a sentencing Court must at all stages of its consideration of a particular matter take and retain what his Honour described as "a firm grasp on reality". The reality of the offences for which this Court must now re-sentence the appellant is captured in terms with which I wholeheartedly agree by the learned primary Judge: "Offences of this kind must be put down and put down heavily. The use of firearms by citizens against each other is absolutely to be deprecated in the strongest terms and it is the clear duty of this Court to in due course pass sentences which will make it clear, not just to the offender, but those who may be like-minded, that endeavouring to shoot another human being or discharging a weapon into a house without being able to see whether or not anybody was in that house, are two very serious offences." 70 There should be, in my opinion, a measure of cumulation of the two sentences now to be passed. The two offences, although separated by some six days, were in my opinion discrete offences. The offence of 8 March was, in my opinion, a very serious contravention of section 93H(2) of the Crimes Act. It warrants, in my opinion, a sentence of imprisonment of 4-1/2 years. 71 I have considered, also, the question of special circumstances as bearing upon the setting of a non-parole period. The learned primary Judge found special circumstances but did not identify them. I should think that his Honour probably had in mind: the cumulation of the sentences; that this was the appellant's first time in custody; that the appellant's previous convictions were for offences lying towards the bottom end of the scale of criminal culpability; and that the appellant was depressed and fragile. The sentences which I believe should now be imposed provide in part for a variation of the statutory norm in connection with the second count. I propose, as well, a minor adjustment to the overall non-parole period so as to reflect the special circumstances.

[1] That there be substituted for the verdict found by the jury on Count 2 in the indictment a verdict of guilty of the alternative offence charged in Count 3 of the indictment.

[2] That upon such substituted verdict the appellant be convicted and sentenced to imprisonment for 4-1/2 years to commence on 11 June 2005 and to expire on 10 December 2009 with a non-parole period of 2-1/2 years to commence on 11 June 2005 and to expire on 10 December 2007.

[3] That the application for leave to appeal against the sentence passed upon the appellant in connection with Count 1 in the indictment be granted and that appeal against sentence be dismissed. 73 I note that the effect of the foregoing orders is to pass upon the appellant sentences constituting in the aggregate a head sentence of 6-1/2 years commencing on 11 June 2003 and expiring on 10 December 2009, with a non-parole period of 4-1/2 years commencing on 11 June 2003 and expiring on 10 December 2007,

74 DOWD J: I have read the judgment of Sully J in draft form and I agree with the proposed orders and his reasons therefore. I have read the draft judgment of Smart AJ, with whose reasons I also agree. 75 SMART AJ: I agree with Sully J. 76 I make these additional comments. In his challenge to the sentence on count 1 the appellant submitted the judge erred in his determination of the nature of the appellant's actions and particularly when he sentenced the applicant on the following basis: "He [Mr Maclean] was in his bedroom at the time [when the appellant fired shots on 2 March] and one shot struck the outside wall of his bedroom at about head height for Mr Maclean who is a tall, big man causing him to become very alarmed."

The appellant's counsel supported this submission with an analysis of the complainant's evidence. The evidence of the complainant established that about 8am on 2 March 2002 he was in the main bedroom of the house which was on the north side when he heard three loud gunshots. He went gingerly outside; another two shot were fired from the north east. As he went back inside one more shot was fired which hit something above him probably the roof.

77 In his evidence the appellant (T203) said that when he came to the corner of the ti-tree he pointed the rifle at the house and fired a shot in the direction of the house. He did not know where it hit. He could not hear any noise. This points to it hitting the mud brick wall of the complainant's bedroom. There was a hole in the mud brick wall at a point about half a metre higher than the complainant..

The appellant said that after firing his first shot he fired three shots at the solar panels. 78 The judge has drawn inferences from the materials before him and was entitled to do so. 79 Even assuming there is room for debate whether it was one of the shots of 2 March or 8 March 2002 which struck the wall of the bedroom this would not lead to a lesser sentence being imposed on count 1. A sentence of 4 years imprisonment is correct when the offender has fired a gun into a dwelling house which is occupied. That is a terrifying experience for the occupier and must be strongly discouraged. The suggestion that aiming the gun so that the bullets lodged in the roof significantly reduced the criminality involved is not accepted but it is a factor to be taken into account. The sentence on count 1 should not be disturbed.

Last Modified: 05/03/2004 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.

CITATION : Regina v Robert Andrew Livingstone [2004] NSWCCA 122 HEARING DATE(S) : 15 April 2004 JUDGMENT DATE : 30 April 2004

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