RG v R [2017] NSWCCA 60 | Case summary

Judgment

HOEBEN CJ at CL: Application for leave to appeal against conviction The applicant seeks leave to appeal his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The sole ground of appeal relied upon by the applicant is: Ground 1 - That the verdict in relation to Count 1 is unreasonable or cannot be supported by the evidence.
The charges the subject of the indictment arose from the shooting of Maha Hamze on 9 March 2013 at her residence at Auburn. Ms Hamze was shot when she responded to a knock at the front door of her home. She suffered four gunshot wounds to her pelvic region, one gunshot wound just below her left knee joint and one gunshot wound to her upper right leg. The shooter fired between 28 and 31 bullets from a Glock pistol through double mesh security doors and corresponding wooden doors into the Hamze home. The wooden doors were opaque with no glass panelling.
On 10 March 2013 police executed a search warrant at the applicant's home and located the Glock pistol used in the shooting.
The Indictment contained three counts: (a) One count of shoot with intent to murder, contrary to s 29 of the Crimes Act 1900 (NSW) which carries a maximum penalty of imprisonment for 25 years and a standard non-parole period of 10 years (count 1). (b) In the alternative to count 1, one count of discharge a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act, which carries a maximum penalty of imprisonment for 25 years and a standard non-parole period of 9 years (count 2). (c) One count of possess a pistol not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW), which carries a maximum penalty of imprisonment for 14 years and at the time of the offence, a standard non-parole period of 3 years (count 3).
The applicant was tried by a jury in the Sydney District Court before her Honour Judge Hock on 16 October 2014. The applicant pleaded not guilty to counts 1 and 2. He pleaded guilty to count 3. The defence did not challenge the Crown ballistics evidence that the Glock pistol found in the applicant's house was the pistol used in the shooting.
The applicant gave evidence in the trial. He denied any involvement in the shooting. As explained below the Crown relied on various recorded conversations between him and a prisoner Bilal Haouchar in which the applicant referred to the shooting. In his evidence the Applicant stated that he was attempting to "big note himself" to impress Haouchar. He said that he what he told Haouchar about the shooting he had merely learned from news reports. He stated that did not own or have access to a Mercedes Benz motor vehicle. The applicant said that he obtained the pistol and $5,000 from the actual shooter on the evening of 9 March 2013. The pistol was later recovered from his residence when the police executed a search warrant.
On 28 October 2014 shortly after retiring, the jury returned a verdict of guilty on count 1.
On 15 May 2015, the sentence proceedings commenced. On 5 June 2015 the applicant was sentenced to an overall sentence of 21 years and 6 months imprisonment with a non-parole period of 16 years. Crown case
At about 2.30pm on 9 March 2013 Maha Hamze was in the backyard of her home in Auburn Road, Auburn smoking a cigarette and talking to her daughter, Asmahan, by cordless telephone. Her four year old daughter, NH, was in a small lounge room of the house, watching television. While on the phone Ms Hamze heard someone knock on her front door. She walked to the door while talking to her daughter and asked "Who is it". She heard a male voice say "Open the door" and saw the door handle being turned and the door being pushed. The voice did not have an accent. She took the phone away from her ear and held it down while she went to look through the peephole in the door. Before she could look through it someone started shooting through the door. On the Crown case it was the applicant who shot at Maha Hamze.
Ms Hamze stepped back towards the stairs and held onto a bannister, on the right side of the staircase. NH ran from the small lounge room towards Ms Hamze, who told her "Just to stand there. Don't move." She remained standing until the shooting stopped, holding onto the railing. When the shooting stopped, Ms Hamze fell to the floor. Her sister Nouha Taha, who lived next door, came in through the back door.
Photographs 81 and 82 in Exhibit E show a bullet lodged in the cordless telephone Ms Hamze was holding when she was shot.
Ms Hamze was taken by ambulance to Westmead Hospital, where she stayed for about 25 days. She suffered a total of eight bullet wounds to her lower limbs and pelvic area. The gunshots caused a fracture to her left tibia, which required internal fixation with a metal plate, and a fracture to her right femur.
The front entrance to the Hamze house consisted of double wooden doors. The doors were locked but not the security screen doors, which was usual.
Ms Hamze had five children, Bilal aged 28, Yusuf aged 23, Ibrahim aged 16, a daughter Asmahan and NH. She lived with her husband, Yusuf, Ibrahim and NH. On 9 March 2013 Bilal was in gaol; her husband, Yusuf and Ibrahim had gone to visit him.
The victim's sister lived next door with her two sons, Khaled and Zakariah, both in their twenties. After the victim was shot, her sister ran into the house followed by Khaled and Zakariah. She then left and went back to her house to call the ambulance while the two nephews stayed with the victim. They asked her who did this to her and the victim said "I don't know".
A feud existed between the victim's family and a family with the surname of Goktas. A 16 year old boy, Hasan Goktas, was shot in the stomach outside the Hamze residence. Fifteen minutes after police arrived at the victim's home on 9 March 2013, there was a drive-by shooting at the Goktas house. The victim's son, Bilal, was charged with the shooting of Hasan Goktas outside the Hamze home, but he was found not guilty.
When the victim was shot, the shooting was continuous with no pause. It felt like a long time to her but she did not know for exactly how long it lasted.
Asmahan Hamze, the victim's daughter, was speaking to her mother on the phone when she heard her little sister (NH) scream and then a bang, after which the phone cut out. It took her about half an hour to get from her house to her parents' residence. When she arrived the police had already set up crime scene tape and the victim was being brought out of the house by ambulance officers.
In evidence she said that she did not hear her mother say anything and did not hear her call out "Who's there". She did not know where her mother was standing at the time she (Asmahan) heard the bang. She was aware of "bad blood" between her family and the Goktas family. She was aware that a member of the Goktas family was shot in the vicinity of her parents' home some six or seven months before her mother was shot.
Mr Beaver was at his home in Auburn Road on 9 March 2013 when he heard about a dozen loud noises which he thought was hammering next door. He looked over the street and saw a black Mercedes turn into Water Street and take off at high speed.
Ahmed Abouelkhir was driving on Auburn Road on 9 March 2013 when he pulled over next to the park near Water Street to use his phone. He saw a black Mercedes parked about 50 metres in front of him, with two other cars parked between him and the black car. He heard a loud sound like fireworks which he then recognised as shooting from the reaction of a girl walking next to his car. He saw two men, one tall and the other about 15 - 20 centimetres shorter, wearing heavy clothing with long sleeves and jackets covering their heads. He could not see their faces. The men went into the house. Mr Abouelkhir heard the sounds and then he saw the same men come out. They walked "fast" to the black car and then drove into Water Street.
The Crown relied on recorded conversations between the applicant and Bilal Haouchar which took place at the Lithgow Detention Centre. The first of the conversations took place on 24 February 2013. This was relied upon by the Crown as indicating a motive for the shooting. The applicant told Bilal Haouchar that Bilal Hamze, the son of the victim, had extracted $5,000 from the applicant's mother and that the applicant had told Bassam Hamze that he was going to shoot his cousins, one of whom was Bilal Hamze.
The following was recorded as having been said on that occasion: "[APPLICANT]: He was, he already, he was talking to my mum and saying, after that Bill went, whatever, "Oh you should just give them something 'cause they're gonna shoot your mate Paul. Just give them something now to keep them quiet" and my mum gave them five grand for that Amir to give to Bill. To keep him quiet. So I'm gonna get him to that Amir just for even saying for her to do that." … [APPLICANT]: We'll see when he's in gaol and his brother's knocked and he's, he's crying in his cell at night because he's, because he's got his brother knocked. We'll see what happens when, how he feels. … [Laughter] [HAOUCHER]: He's a dog, his brother too huh? [APPLICANT]: I don't care. Whoever's there. Out of any group. If there's ten of them there, I'm gonna just get, leave like one of them. … Just tell them, "Youse fucken' come to Marrickville again, youse are dead". So they pass the message, and if Bass wants to talk shit from gaol after that still then I'll get his brother too …" … [APPLICANT]: Yeah, yeah. Leave it, leave it as, as that you know. Because I told him "I'm gonna shoot your fucken' cousins". This and that. I go, "If you're gonna, if you're just gonna back your cousins, then we'll have a go". … [APPLICANT]: I said "There's no hard feeling towards ya". I said "But if you got, if you're saying you're gonna back your cousin". And he goes, "I can't let no one shoot my cousin, Bear". He goes "I'm not backen him, but I can't let no one shoot my cousin. So if you're gonna shoot him, then we'll have a go". I said, "OK then we'll have a go". …"
On 10 March 2013, the day following the shooting, the applicant again visited the Lithgow Detention Centre and spoke to Bilal Haouchar. That conversation was recorded on video. In that conversation, he said that he had fired 31 shots and that he kept a pistol at home. He made other admissions in the course of that conversation. The following extracts from those conversations were relied upon: "[APPLICANT]: Yeah fuck that. Fuck with my mum … [HAOUCHER]: Yeah, that's right. Not really bro. [APPLICANT]: Lucky I didn't do worse. [HAOUCHER]: Deserve what they get … [APPLICANT]: Thirty one … she's lucky that. [HAOUCHER]: Thirty one." … [APPLICANT]: … He's lucky, if his brother was there I would have knocked his brother. I was gonna. If any guys were there I was gonna even do dad. At the women, it was a bit slack, even though, I coulda done her too, because it hit the leg, but doesn't mean my bull, I thought maybe she dropped and would've kept hitting her because I done all of them in there, the whole thirty clip plus the one. …" (The reference to "Bull" was agreed to be a reference to "bullet or bullets".) [APPLICANT]: The, the car was there, the son's car, the car, the car was there, the son. We thought he would have been home, beeped the horn, revved it, I thought he was gonna come out, like he would just come out. So that would've been smart, that way. You know what I mean? But we were there anyway. Might as well get some result than nothing…" … [APPLICANT]: They're lucky I didn't knock their mum. We were going there. Any guy that was there, you know, say if there were ten boys there, we were knocking every single one of them. … [APPLICANT]: Yeah, that's what I wanna do. I wanna, that's what I mean, that's, hey, we were gonna knock, say there was ten boys there, we were knocking every single one of them … … [APPLICANT]: Let 'em come. That next day I'll be at their house knocking, knocking whoever opens the door. Knocking."
There was evidence from a ballistic expert, Timothy Berry. He had an armourer's certificate relating to the care, maintenance and operation of Glock self-loading pistols. He attended the victim's residence on 13 March 2013 and observed ballistic and related damage to the double front security mesh doors and corresponding double wooden doors immediately behind the security doors, consistent with having been caused by multiple fired bullets that perforated both the mesh security doors and the wooden doors. Some bullets continued within the house impacting objects such as the lounge, staircase, spindles, tiled floor and the rear glass panelled door leading to the rear yard. The trajectory was from outside to inside in a slightly downward trajectory.
Trajectory rods were placed in the bullet holes to give a clear idea of their angle through the double front doors. Mr Berry's opinion was that the front doors had defects or perforations consistent with 30 bullets, however, each defect or perforation might not have been the result of the passage of one single fired bullet through it but might have been the result of a fired bullet impacting the security mesh door and then fragmenting, causing two perforations of the wooden door.
In cross-examination Mr Berry agreed that the pink projector rod on the left hand side of the door appeared to be going in an upward direction. There were a number of defects that did not have trajectory rods through them that had impact damage, but he did not know whether they were caused by the passage of a single fired bullet. They could have been caused by a fragment. That one in particular, because it perforated the door, was more likely from a fired bullet. He agreed that it appeared that the majority of the bullets that perforated the doors were being fired in a downward direction. He agreed that there were more on the right-hand side below the door handle than on the left-hand side.
He agreed that if a man of average height fired the pistol with his arm at a right angle to his body he would expect the bullet holes to be a lot higher than they were. If a man of average height fired a pistol with his arm at a 60 to 45 degree angle then he would expect the bullets to hit as pictured in the photograph shown to him. He agreed that the rods in the right door (which is the left door if standing on the outside) were in a downward direction but also slightly to the right. Photographs 7 and 8 of Exhibit F show the trajectory rods in position. There is a close grouping of rods at a 90 degree angle and a slightly wider grouping at a downward angle of 45 - 60 degrees. By reference to photographs 7 and 8, the close grouping is on the left and the grouping at a downward angle is on the right.
Those observations, which in my opinion are clear from the photographs, were confirmed in the evidence of Officer Berry (20.10.2014, T.85.24-.39). "Q. On that basis is it a reasonable conclusion to draw that whoever shot through the door was in fact standing on the outside of the door with the door handle and then swung their gun around and shot through the door without the handle? A. Yes or moving on the spot, either/or. Q. Either? A. Mm. Q. But certainly in relation to the door there on the right it appears that they have fired there at an angle? A. Mm. Q. Whereas on the left they appear to have been firing straight. Is that reasonable to say? A. Yes."
Mr Berry said that a Glock was a semi-automatic or self-loading pistol, which required one to depress the trigger and then release it again and then depress the trigger again for each individual bullet to be discharged. It would depend upon the shooter how long it would take to expel 30 bullets from a Glock but it would be a matter of seconds.
Exhibit G comprised five photographs of a Glock pistol, magazine and ammunition. The bullet is the portion of the ammunition that leaves the firearm through the barrel and exits through the muzzle. The fired cartridge case is ejected through the ejection port on the right-hand side of the pistol.
Detective Crawford was not present during the execution of a search warrant at the applicant's home on 10 March 2013, but as officer in charge he was able to say that the Glock was located in a lounge chair in the lounge room of the applicant's premises. The only person besides the applicant who lived in those premises was his mother. Also located during the execution of the search warrant was a one page document with the number two at the top, listing the channels used on police radios. He agreed under cross-examination that police had not located any Mercedes Benz motor car that could be said to be in the possession of the applicant at the time of the shooting.
Detective Crawford was aware that police had conducted other investigations involving members of the Hamze family. He agreed that some witnesses, who may have heard or seen things in relation to this matter were reluctant to give statements which was common when matters in relation to the Hamze family were investigated. He knew that Bassam Hamze was a well known criminal in New South Wales and had been in gaol for a number of years.
Detective Crawford agreed that there were internal rivalries within Brothers 4 Life between the Bankstown and Blacktown chapters. He agreed that conflict existed between the two chapters. He agreed that the conflict between the two chapters pre-dated and post-dated the shooting of Maha Hamze. Bilal Hamze was a member of the Bankstown chapter.
On 21 July 2012 at Guildford there was a shooting incident involving Bilal Haouchar and a high ranking member of the Brothers 4 Life from the Bankstown chapter linked to the Hamze family. As a result Bilal Haouchar was charged on 9 December 2012. He was in custody in February and March 2013 initially for a breach of his parole.
Detective Crawford said that police had evidence to indicate that Bilal Hamze, the son of Maha Hamze, was involved with Brothers 4 Life. Police were aware of a feud between the Goktas family and the Hamze family, involving Bilal Hamze. Bilal Hamze was charged in relation to the shooting of Hassan Goktas six or seven months earlier. Before his son was shot, Mr Goktas Senior was shot and injured.
Detective Crawford was aware that at 2.55pm on the same day that Maha Hamze was shot there was a drive-by shooting at the Goktas home on Park Road Auburn. At the time police were of the opinion that the shooting at the Goktas house may have been a response to the shooting at the Hamze house half an hour or three-quarters of an hour before. Police were able to find the perpetrators of that shooting and charge them. One was connected to the Hamze family and one was an associate of Brothers 4 Life. The applicant's case
It was the applicant's case that he did not shoot Maha Hamze. He gave evidence that the lawfully recorded conversations he had with Bilal Haouchar contained lies by him in order to impress Haoucher. He sought to show through cross-examination that other persons may have committed the shooting because of a feud, gang rivalry or other reason. He gave evidence that he obtained the Glock pistol on the day of the shooting from the person who did the shooting.
The applicant said that after his release from custody in 2012 he lived with his mother at the home he had lived in for the majority of his life. He felt that he needed a pistol "Because of the enemies I made in gaol." For that reason he had acquired a 9mm pistol. He said that he did not have more than one pistol at any one time.
The applicant gave evidence that on the night of the shooting, some time between 9pm and 11pm, he waited outside his house for an unknown person with whom he had arranged a meeting. That person arrived by himself and they sat on the front step. That person told him that he had done something and he wanted to swap his pistol for the applicant's. This person told him that his pistol was dirty and he wanted a clean pistol (a dirty pistol is one that has been used in a crime). The applicant said that he believed that the pistol which he was being offered had been used in the shooting which he had seen on television. This person offered the applicant $5000 for his 9mm pistol. The applicant agreed to swap it to help him out and because he needed the money. The person was a friend but the applicant would not identify him. The applicant said, "The gun can't be linked to me ... The crime the gun had done, I had nothing to do with it, so l didn't care about taking it".
The next day the applicant went to visit Mr Haouchar at Lithgow Correctional Centre. The applicant drove there in a Ford car. He knew about the Mercedes Benz C63 but did not own a Mercedes Benz on 9 March 2013 and never had access to a Mercedes Benz motor car.
He denied that he went to Auburn and shot at the front door of the Hamze residence. He agreed that in the conversation with Mr Haouchar on 10 March 2013, he said that he had carried out the shooting at the Hamze residence but said he was lying to him. He agreed that when he said "I done all of them in there, the whole thirty clip plus one, fuck them pieces of shit" he was referring to the shooting. He said that he did not have a magazine that would hold 30 bullets for a Glock and had never had one. He said that he referred to "thirty clip plus one" because the person who had done the shooting and had given the pistol to him, told him that he had fired 31 shots. The applicant said that when he referred to a C63 Mercedes it was all an invention. Applicant's submissions
The applicant submitted that the crime of attempted murder had as an essential mental element that the accused intended to kill. Accordingly, the Crown had to prove beyond reasonable doubt that the accused fired the shots with an intent to kill. This was because there must be an intent to commit the complete offence of murder. It followed that intent to cause grievous bodily harm or reckless indifference to human life would not be sufficient (Knight v The Queen [1992] HCA 56; 175 CLR 495 at 501 per Mason CJ, Dawson and Toohey JJ).
The applicant accepted that the usual direction in relation to specific intent is that a person's acts may themselves provide the most convincing evidence of his or her intention. He submitted that it was a misdirection if the direction had the effect of equating specific intent with recklessness or that specific intent is presumed from foresight of consequences. He noted that it was the intention of the accused that had to be assessed, not that of a "reasonable person".
These submissions were not controversial.
Her Honour gave both written and oral directions to the jury as to intent. The written directions outlined the necessary facts of which the jury would need to be satisfied before being able to convict the applicant. Her Honour's oral directions on this issue were as follows: "Question 2 in Count 1: "Are you satisfied beyond reasonable doubt that the accused intended to murder - that is to kill Maha Hamze?" Now again, this is a fairly straightforward issue. What a person intends, involves, as you would probably readily understand, an examination of what is in a person's mind at the time that - I will use, he, because obviously this case is an allegation against a male - at the time he did something. You might all be saying to yourselves at this point, well how can we possibly decide what the accused intended - and obviously to be considering this question, you have already decided that it was the accused who shot at Maha Hamze - how can we decide what was in the accused's mind - we are not mind readers. Well there is nothing unusual about what you are being asked to do, ladies and gentlemen. The words, intended or intention, are very familiar words and in this legal context, they carry their ordinary meaning. What the accused intended may be concluded or deduced from the circumstances in which the shooting occurred and from the conduct of the accused, before, at the time of, and after, he shot at Ms Hamze. Whatever a person says about his intention, may be looked at for the purpose of finding out what that intention was at the relevant time. In some cases, a person's acts may themselves provide the most convincing evidence of his intention. Where a specific result is the obvious and inevitable consequence of a person's act and where he deliberately does that act, you may readily conclude that he did that act with the intention of achieving that specific result. Let me give you an example of that direction. If one person hits another person on the head with a hammer, it is, you might think, both obvious and inevitable that the person will receive a really serious bodily injury as a result. If therefore, the first person deliberately hits the other on the head with a hammer, it is a simple matter for a jury to conclude that he did so with the intention of inflicting really serious bodily injury on the other person. You may think there is no difficulty about that at all but you must remember, you are considering the intention of the accused here, not what your intention might have been, had you been in his position, nor the intention of any theoretical person." (28.10.14, SU 19-20)
After directing on the definition of grievous bodily harm, her Honour set out the difference between the intention the Crown had to prove for counts 1 and 2 as follows: "The only difference, as you would be well aware, between Count 1 and Count 2 is the intention of the shooter, and obviously an intention to kill is more serious than an intention to cause grievous bodily harm. Again the Crown argued that if you were not satisfied beyond reasonable doubt that the accused intended to murder Ms Hamze, you would be satisfied beyond reasonable doubt that he intended to cause really serious bodily injury as set out in the document there." (28.10.14, SU 23-24)
The applicant accepted that her Honour was not asked to supplement her directions by explaining that reckless indifference as to life did not equate to an intention to kill. The applicant submitted that had her Honour been asked to do so, such a direction would have been appropriate in the circumstances because the Crown relied upon the admissions of the applicant to prove an intent to kill as summarised by her Honour. These admissions, the applicant submitted, could not prove an intent to kill but only a reckless indifference to the life of the victim by him.
The applicant submitted that there was no circumstantial inference direction given by her Honour to assist the jury in determining his state of mind. In making that submission, the applicant accepted that no such direction was sought on his behalf. The applicant submitted that this Court should have regard to both of those directions when making an independent assessment of the evidence to determine whether the jury should have held a reasonable doubt as to the intention to kill by him.
The applicant submitted that there were two key questions to be resolved by the jury in relation to count 1. 1. Did he discharge the pistol at Maha Hamze and if so, 2. Did he shoot with an intent to murder her?
The applicant accepted that by their verdict the jury rejected the reasonable possibility that he was not the shooter and also rejected the possibility that he was not telling the truth to Bilal Haouchar on 24 February and 10 March 2013 but was merely seeking to impress him. While the applicant accepted that it was not unreasonable for the jury to be satisfied as to the first question, he submitted that the jury should have had a reasonable doubt as to his intention when he fired the weapon. The applicant submitted that the critical issue on that question was whether a jury, acting reasonably, could have rejected as a rational inference the possibility that he fired the shots at the victim without an intention to kill. Put another way, the applicant submitted that the question was: - Could it be said that the circumstances were such as to exclude the possibility, as not being reasonably open on the evidence, that he fired the shots at the victim with reckless indifference to human life, or with an intent to injure?
The applicant submitted that the admissions made in the intercepted conversations which the jury must have accepted as reliable, was material from which the jury was entitled to draw inferences about his intention at the time of shooting. The applicant submitted that based on these admissions, it was open to the jury to infer that he went to the Hamze residence with an intention to kill any male person there, but it was also a reasonable possibility that he did not go to the home to kill Ms Hamze or any female occupant. The applicant submitted that the admissions made by him to Bilal Haouchar, point to the possibility that having arrived there he was unable to confirm the presence of any male, even after attempting to lure a male from the home by the use of his vehicle's horn and the revving of its engine. He then indiscriminately shot through the door of the house recklessly as to whether he would kill Ms Hamze or any other person there.
The applicant submitted that the circumstantial evidence was similarly consistent with the possibility that he shot through the door and the house recklessly not caring whether he might kill any person inside.
The applicant submitted that the forensic ballistics evidence concerning the trajectory of the bullets supported that submission. In that regard, he relied upon the following: 1. The forensic ballistics evidence which related to the front doors. 2. That bullets impacted on doors, the lounge, staircase, the handrail and other parts of the house. 3. The trajectory of a bullet on the left side was parallel if not going upwards, but the evidence was unclear whether the door was pierced by a bullet or by a fragment of a bullet that ricocheted. 4. That a large majority of the bullets travelled from outside to inside in a slightly downward trajectory. 5. The damage to the door on both sides was below the door handle and above the bottom of the door. 6. The bullets were fired in a position consistent with a person of average height (between 5'10" and 6'2") holding the pistol with his arm lower than a right angle, but somewhere between 60 and 45 degree angle. 7. The evidence was consistent with 30 bullets being discharged, which could have been expelled in a matter of seconds. 8. The injuries to the victim were to her lower body.
The applicant submitted that even if the jury was entitled to accept that the applicant was aware that someone was behind the door (because the victim called out "who is it" and a person replied "open the door"), the circumstances did not exclude the reasonable possibility that the applicant did not shoot with an intent to kill, based on the downward trajectory of the bullets, the corresponding angle of the shooter's arm, the nature of the injuries sustained by the victim, and the short length of time during which the pistol was fired.
The applicant submitted that in the circumstances the jury should have entertained a reasonable doubt that he discharged the firearm through the door and that at the time was recklessly indifferent as to whether he killed the victim as opposed to having an intention to kill, i.e. "the circumstances were such as not to exclude the possibility that the appellant stabbed Constable Kirwan in anger but without an intent to take his life" (Cutter v The Queen [1997] HCA 7; 143 ALR 498 at 504 per Gummow J). Consideration
The task of a Court of Criminal Appeal, when considering an "unreasonable verdict" ground, was set out in SKA v The Queen [2011] HCA 13; 243 CLR 400 (French CJ, Gummow and Kiefel JJ) as follows: "11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is 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." 12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses[5]. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." … 14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." [Footnotes omitted.]
The applicant referred to two directions of law which were not sought by his legal representatives at trial and were accordingly not given to the jury. One of these directions introduced the concept of "reckless indifference to human life". The applicant also submitted that a "circumstantial evidence direction" would have been appropriate. Those submissions can be interpreted in two ways. One interpretation is that her Honour erred in failing to give such directions. In those circumstances, leave pursuant to r 4 of the Criminal Appeal Rules (NSW) is required before the applicant can rely upon that submission.
On that interpretation, the Court is being asked not merely to assess the evidence for itself but to try the case on appeal on a different basis to the way it was tried below. In The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013 the Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said: "59 There remains another difficulty with the Court of Appeal's approach. The Court of Appeal's hypothesis was never put to the jury by the respondent's counsel, either directly or indirectly. The hypothesis was contrary to, and excluded by, the case that the respondent put to the jury. … 65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court 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."" [Footnotes omitted.]
In the present case, it would not be appropriate for this Court to direct itself in terms of an issue that was never part of the prosecution or the defence case and upon which no judicial directions were sought or given. It is significant that neither counsel for the Crown nor the defence at any time in the trial raised the issue of "reckless indifference". Neither those words nor that concept was mentioned by the parties at trial. Recklessness played no part in the prosecution or the defence cases. No cross-examination was directed to any witness on this topic and not surprisingly, given the manner in which the applicant chose to run his case, he said nothing about this issue in his evidence. An assessment of the applicant's state of mind by the jury was not dependent on circumstantial reasoning. Accordingly, no "circumstantial case direction" was either necessary or desirable.
Defence counsel never addressed the jury to the effect that if they came to the conclusion that the applicant had acted with reckless indifference to human life, they should acquit him. At no time was her Honour asked to direct the jury that a finding by them that the applicant acted with reckless indifference would not be enough to convict him. Thus reckless indifference to human life was incapable of informing the jury's deliberations or their ultimate verdict.
The prosecution case was that the applicant shot the victim intending to kill her or he discharged the weapon with an intent to inflict grievous bodily harm. The applicant gave evidence at his trial that he was not the person who shot the victim. His explanation for the pistol used in the shooting being located by police during the execution of a search warrant at his home, was that an unknown person who actually shot Ms Hamze gave him that weapon after the shooting in exchange for a pistol owned by him. Understandably, the applicant's counsel below focused on the proposition that her client did not commit the offence and accordingly, only perfunctory attention was given to the alternative count in the indictment. In the closing address, defence counsel submitted that whoever the shooter was, there was insufficient evidence for the jury to be satisfied that that person had either an intention to kill or inflict grievous bodily harm.
The defence submission was consistent with the way the case was run, namely that the applicant had nothing to do with the shooting. Nonetheless, defence counsel's submission carried with it by implication a submission to the effect that if the jury were satisfied beyond reasonable doubt that the applicant was the shooter, he was not guilty of either count 1 or count 2 because he did not have the requisite intent. At no stage were the jury required to distinguish these concepts from reckless indifference to human life.
The alternative interpretation is simply a restatement of the fundamental proposition set out by the plurality in SKA v The Queen, i.e. whether this Court 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. Put another way, whether this Court would be satisfied on the whole of the evidence that the Crown had excluded as a reasonable possibility that the applicant discharged the pistol recklessly and had no specific intent to kill the victim. There is a certain unreality in approaching the matter on that basis given the way in which the trial was run. Nevertheless, it was necessary for the Crown to prove specific intent beyond a reasonable doubt so that it is open to the applicant to raise that issue in this way. It follows that if this Court, on an examination of the whole of the evidence is satisfied that it was open to the jury to find beyond reasonable doubt that a specific intent to kill existed, the conviction appeal must fail.
When considering that interpretation, the intention of the accused was clear from what he said in the intercepted conversations on February 24 and 10 March 2013. There is circumstantial support for the applicant's stated intention in the ballistics evidence. The direct evidence and the supportive circumstantial evidence was more than enough to convict him once the jury concluded beyond reasonable doubt that he was the shooter.
Her Honour's written and oral directions clearly and unambiguously emphasised the necessity to prove the essential ingredient of "intent to murder". Her directions also clearly distinguished the ingredients the Crown had to prove in the primary count from those required to be proved in the alternative count. Her Honour gave clear and practical directions on how the jury might assess the requisite state of the applicant's mind. In the course of giving directions, her Honour said: "Where a specific result is the obvious and inevitable consequence of a person's act and where he deliberately does that act, you may readily conclude that he did that act with the intention of achieving that specific result." (28.10.14, SU 20)
In the recorded admissions of the applicant, there is evidence from which the jury were entitled to infer that he went to the Hamze residence with the intention to kill any male person there. Although it may be accepted that the statements by the applicant do not disclose an express intention to kill the victim or any other female occupant as at 24 February 2013, this is hardly to the point. Section 18 of the Crimes Act 1900 does not require that there be an intent to kill or inflict harm upon the person actually killed. Moreover, the recorded statements of the applicant before and after the shooting, indicate a clear intention to exact vengeance upon any person who might be present at the home.
Before the shooting, in the context of "knocking" Bilal Hamze, the applicant said to Bilal Haouchar: "I don't care. Whoever's there. Out of any group. If there's ten of them there I'm gonna just get, leave like one of them … Just tell them, Youse fucken' come to Marrickville again youse are dead". So they pass the message, and if Bazz wants to talk shit from gaol after that still then I'll get his brother too." (Exhibit H, 24.2.2013, p 9) "… If any guys were there I was gonna even do dad. At that the women, it was a bit slack, even though, I coulda done her too, because it hit the leg, but doesn't mean my bull, I though maybe she dropped and would have kept hitting her because I done all of them in there, the whole thirty clip plus one." (10.3.2013, Exhibit 1) (The video recording of that intercept showed the applicant pointing downwards with his arm in a shooting gesture.)
Those statements by the applicant, taken with the trajectory rods and the applicant's gesture at the time of the second intercept, make it clear that the applicant went to the Hamze residence to kill any male person there. The clear intention was to exact vengeance. Having arrived and found that the only person present appeared to be the victim, he exacted that revenge upon her and having fired a number of shots almost straight into the door, anticipated her falling to the floor and discharged the rest of the bullets in a downward trajectory. The number of bullets fired and the close grouping of the bullet holes, as shown by the trajectory rods, fully support a finding that the applicant intended to kill whoever was behind the door. Those matters are quite inconsistent with somebody recklessly discharging the firearm in an unplanned way. That evidence effectively excluded that latter scenario as a reasonable possibility.
There was clear evidence which would have enabled the jury to find beyond reasonable doubt that when he fired the shots, the applicant had the intention to kill and to exclude as a reasonable possibility, any non-specific intent such as recklessness. The most compelling evidence is the manner of the shooting itself. The discharge of an entire 30 clip magazine through the front door, knowing the victim was behind the door, was a deliberate and calculated act fully supportive of an intention to kill rather than any notion of recklessness. Although the applicant may have had specific male targets in mind before going to the premises, this in no way prevented him from deliberately turning his attention to Ms Hamze as a suitable person upon whom to exact revenge. The jury were entitled to accept Ms Hamze's evidence that she heard a knock on the door, and as she walked towards it, she called "Who is it"? A male voice responded "Open the door" and she observed the door handle to be turned and the door being pushed. The jury were therefore entitled to infer that the shooter knew that Ms Hamze was behind the door and that the bullets were intended to kill her. The trajectory rods and the close grouping of the bullet holes persuasively support this conclusion. This evidence strongly suggests precise targeting of the victim rather than the sort of imprecision normally associated with the reckless discharge of a pistol.
This evidence, together with the applicant's stated intention on 24 February 2013 to get "whoever's there", and his statement to Bilal Haouchar on 10 March "But we were there anyway. Might as well get some result than nothing" point to an intention to kill and effectively exclude any hypothesis of recklessness being reasonably open. The applicant, having been disappointed in not finding his chosen target, i.e. one of the male members of the Hamze family, decided on the spur of the moment to exact his revenge against the only available target, i.e. the victim, albeit that she was female.
In submissions the applicant sought to rely upon the downward trajectory of many of the bullets, together with the fact that the victim's injuries were in the lower part of her body, to support a hypothesis that he was deliberately aiming low in order to avoid inflicting death or serious injury. The applicant can draw no comfort from this evidence. As already indicated, not all the bullets had a downward trajectory. Exhibit F (photographs 7 and 8) show at least six trajectory rods protruding through bullet holes at an angle of or near 90 degrees. Ms Hamze's evidence was that she remained standing, holding herself upright on a staircase bannister, only falling to the floor when the shooting stopped. She received eight bullet wounds, including wounds to her pelvic region, and a bullet became lodged in the telephone she was holding.
Reference has already been made to one of the 10 March 2013 conversations between the applicant and Bilal Haouchar where he said: "At the women, it was a bit slack, even though, I coulda done her too because it hit the leg, but doesn't mean my bull, I thought maybe she dropped and would've kept hitting her because I done all of them, the whole thirty clip plus the one." [Emphasis added] (Exhibit I, p 5) This conversation was recorded on video, as well as audio. When the applicant said the words set out above, he motioned downwards with his right arm. Far from being consistent with firing to avoid injury, it was open to the jury to find beyond reasonable doubt that the statement and gesture indicated precisely the opposite proposition, i.e. the applicant anticipating that the victim may well have been wounded by the first few shots, deliberately fired low thereafter, to maximise the likelihood of the bullet striking her because of his expectation that she had fallen to the floor.
Had Ms Hamze not held herself upright on the bannister throughout the shooting, the applicant's actions in deliberately firing low may well have succeeded in giving effect to his intention to kill. In this regard, his statements to Bilal Haouchar on 10 March that Ms Hamze was "lucky" and that [they] were "lucky I didn't do worse" when considered in the light of the evidence outlined above, could be taken by the jury as a further indication of the applicant's intention to kill, i.e. the applicant being aware on 10 March of the news that the victim had been wounded and not killed was expressing the opinion that she was "lucky to have survived".
Having considered the evidence for myself, I do not entertain a reasonable doubt about the guilt of the applicant. Moreover, the jury had the advantage which this Court does not of seeing the applicant give evidence and be cross-examined. Even if I were to entertain a reasonable doubt about the guilt of the applicant (which I do not) the jury was in a better position than this Court to make that assessment.
In relation to the conviction appeal, the order which I propose is that leave to appeal be granted but that the appeal be dismissed. Sentence appeal
The applicant also seeks leave to appeal from his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act on the following grounds: Ground 1 - Her Honour erred by not giving sufficient weight to the risk of institutionalisation when setting the non-parole period in accordance. Ground 2 - Her Honour erred in characterising the objective seriousness of the offence as being in the worst case category for such an offence. Ground 3 - Her Honour erred in the application of the principle of totality when partially accumulating the sentences. Ground 4 - The sentence imposed by her Honour was manifestly excessive. Offences and sentence
On 5 June 2015 her Honour sentenced the applicant to an overall sentence of imprisonment for 22 years with a non-parole period of 16 years and 6 months, commencing 16 November 2013 with the non-parole period to expire on 15 May 2030 and with the parole period to expire 15 November 2035.
The individual sentences were: Count 3 - imprisonment for 3 years and 9 months with a non-parole period of 2 years and 6 months, commencing 16 November 2013 (the maximum penalty for this offence is imprisonment for 14 years with a standard non-parole period of 4 years). Count 1 - A sentence of imprisonment for 20 years with a non-parole period of 14 years and 6 months, commencing 16 May 2015 (the maximum penalty for this offence is imprisonment for 25 years with a standard non-parole period of 10 years). Sentence proceedings
Her Honour reviewed the factual background and noted that the applicant had pleaded guilty to count 3 on the first day of trial. Her Honour allowed a 25 percent discount for the utilitarian value of that plea, a generous finding in the circumstances. The applicant did not give evidence in the sentence proceedings.
Her Honour set out the injuries suffered by the victim in somewhat greater detail than has already been referred to. There were four gunshot wounds to the pelvic region. There was a further single bullet wound to the left tibial plateau causing a comminuted fracture of that bone (this is the lower surface of the knee joint - the primary weight bearing structure of the lower leg). This required a surgical procedure on 10 March 2013 and Ms Hamze was unable to weight bear on her left leg for six weeks while the bone healed. She required considerable rehabilitation in relation to that injury.
A bullet hit the right femur at the level of the greater trochanter (this is the upper portion of the femur where muscles attach and aid in walking and standing upright). This caused a severely comminuted fracture, although no surgical intervention was required. Ms Hamze's ability to walk was severely impaired and she required significant pain medication. She lost amounts of blood due to the gunshot wounds requiring two units of blood to be transfused. The injuries had the potential to be life threatening.
Ms Hamze was reviewed by a psychiatrist, due to severe anxiety and depression symptoms. She was subsequently diagnosed with post-traumatic stress disorder. This, her Honour found, was likely to affect her emotional state for a prolonged period of time, i.e. years. Her treating surgeon reported on her condition as follows: "Due to the multiple bony injuries suffered by Ms Hamze it is expected that she will never regain her pre-injury level of function in terms of walking. It is expected that she will walk unaided; however issues of chronic pain in the right hip and left knee are likely to persist for the remainder of her life. Furthermore, it is an expectation that the injured limbs will prematurely develop and have more severe osteoarthritis as Ms Hamze ages. The soft tissue injuries (skin, muscle and connective tissue) will leave multiple cosmetic scars. The injury to the muscle may cause chronic pain issues later in life but function of the muscles injured should return to near 100%."
Ms Hamze was aged 47 at the time of the shooting.
Her Honour noted that the seriousness of the offences was reflected in the maximum penalty for them. She took into account the following aggravating factors, which were conceded by counsel for the applicant: 1. The offence was committed in the victim's home. 2. The injury and emotional harm caused were substantial. 3. The offence involved a grave risk of death to another person, namely the child, NH.
In accordance with the verdict, her Honour found an intention to murder Ms Hamze. The apparent motive was revenge because Bilal Hamze had extracted $5,000 from the applicant's mother. Her Honour further noted that at least 28 shots had been discharged into the door of the home. She characterised the offence as "an act of utter lawlessness and must fall into the "worst case" category for an offence under this section of the Crimes Act."
In relation to the applicant's subjective case, her Honour noted the following matters.
At the time of sentence the applicant was aged 29 (27 at the time of the offences). He had been dealt with by the Children's Court on many occasions from the age of 14. Despite supervision and control orders, rehabilitation had not been achieved.
Her Honour noted the following convictions as an adult: 1. Robbery armed with an offensive weapon with matters taken into account on a Form 1. He was aged 19 and sentenced to a non-parole period of 2½ years with a total term of 4 years in November 2005. 2. Reckless wounding in 2009 for which he was sentenced to imprisonment for 18 months to date from 27 June 2010. 3. Damaging property by fire, wilfully obstruct an officer in the execution of duty and possess offensive weapon in a place of detention. Sentenced in August 2010 to concurrent terms of imprisonment dating from 1 March 2011, the longest of which was 16 months. The non-parole period expired on 31 October 2011. 4. Two convictions for damaging property by fire in August 2013 and January 2014 (while the applicant was in custody). He was sentenced to imprisonment for 12 months to date from 21 April 2014 (it should be noted that this sentence post-dated the offences for which he was being sentenced).
Her Honour concluded that the applicant's criminal record did not entitle him to leniency.
Her Honour had regard to the fact that although the applicant was only aged 29, he had spent many of his adult years in custody. Although the applicant did not give evidence, a psychologist's report was tendered which set out much of his background.
By reference to that report, her Honour noted that the applicant was born in Australia to a father of African descent and a mother of Greek/Irish descent. He had one younger brother. The father left the family when the applicant was two and thereafter, his contact with the applicant was sporadic, about once a year. He had not seen his father since he was 18.
The applicant told the psychologist that he was sexually assaulted when he was in Year 1 for a couple of years and that he had anger control issues thereafter. These behavioural difficulties as a child led to him spending time in juvenile detention. He left school before completing Year 10 and only worked briefly. His physical health was good. He used cannabis from the age of 13 to 18, at which time he was smoking 20 to 30 cones a day. He drank heavily until about 19 years of age. As of the date of the report, he was no longer using drugs or alcohol.
Her Honour noted that, although the applicant said that he wished to participate in education programs and continue psychological treatment in respect of his anger management issues, there might be difficulty in him participating in such courses since he had been involved in a number of fights with other inmates and at the time of sentencing, was housed in a high-security wing which restricted his access to education programs.
At the time of sentencing, he was restricted to his cell for about 23 hours a day. This was likely to continue for the foreseeable future. As a result, her Honour took into account that for some time the applicant's conditions in custody were likely to be more onerous than for the general prison population.
Her Honour concluded that although the applicant was still young, his prospects of rehabilitation appeared to be bleak. Her Honour noted that these offences represented a significant escalation in his criminal behaviour. Her Honour did, however, take into account the positive observation of the psychologist at par 57 of her report: "… He has an awareness that he needs support in order to integrate back into the community, and the first starting point would appear to be further counselling so that he may interact more pro-socially with other inmates and thus reduce his classification to a level where he is able to take part in programs such as the Violent Offenders' Therapeutic Program."
By way of interpolation, her Honour noted that the applicant's restrictive custodial conditions were because other prisoners were at risk from him, rather than the opposite.
Although to date the programs and courses that might assist the applicant had not been available because of his conduct in custody, her Honour expressed the expectation that if his behaviour improved, given that his sentence must inevitably be lengthy, he would in due course be able to access those programs and courses.
Although her Honour had regard to both the maximum penalty and the standard non-parole period, which applied to each offence, she determined not to apply the standard non-parole in relation to count 3 because of the plea of guilty, and to impose a longer non-parole period in relation to count 1 because of the objective seriousness of the offending.
When determining the start date for the sentence, her Honour had regard to the fact that the applicant was serving a sentence of imprisonment at the time of sentence and also to the principle of totality. As a result, the commencement date for the sentence was backdated to 16 November 2013 and the sentences imposed for counts 3 and 1 were made partially concurrent.
Her Honour found special circumstances because of the accumulation of sentences but did not reduce the ratio between the non-parole period and the parole period. This was because her Honour concluded that the length of time on parole provided for by the statutory ratio would adequately cover the applicant's supervision and rehabilitation needs while on parole. In addition, her Honour concluded that no lesser non-parole period should be imposed because it represented the minimum period that the applicant should spend in custody having regard to all of the elements of punishment, including the objective seriousness of the offences, specific and general deterrence, denunciation and his subjective circumstances. THE APPEAL
In oral submissions the applicant made it clear that the basis for his application for leave to appeal against sentence was effectively that the sentence imposed was manifestly excessive and that the first three grounds should be regarded as particulars of that basal claim. Accordingly, I have approached the grounds of appeal on that basis. Ground 1 - Her Honour erred by not giving sufficient weight to the risk of institutionalisation when setting the non-parole period in accordance.
The applicant submitted that while her Honour intentionally declined to alter the statutory ratio between the non-parole period and the parole period, she failed to have regard to a relevant factor, i.e. the risk of institutionalisation. On that issue, the applicant relied upon the observation by the psychologist that: "34 The client has also spent the majority of his adult life in custody, for a range of offences including robbery and assault, and for the past five years has been mainly housed in segregation due to continuing altercations with other inmates. He said "Gaols are run by nationalities - they'll look out for you, but because I don't belong to a group it's harder for me". The psychologist noted that the applicant had last been in the community for three months in 2012.
The applicant submitted that her Honour had erred by failing to give effect to her finding of special circumstances and reduce the aggregate non-parole period based on the risk of institutionalisation for him. He submitted that the use of the statutory ratio in the sentence imposed on him was unreasonable or plainly unjust. This was particularly so given his age, his juvenile and adult history in custody and because his custody would be more onerous than the general prison population and because of the significant length of the overall sentence which was imposed.
The applicant submitted that a risk of institutionalisation in itself can be a basis for a finding of special circumstances. The applicant noted that in Jackson v R [2010] NSWCCA 162 at [25] Fullerton J (with whom McClellan CJ at CL and Simpson J agreed) emphasised the relevance of this consideration by reference to the approach to resentencing adopted in R v Lemene [2001] NSWCCA 5. Consideration
A difficulty for the applicant under this ground of appeal is that no submissions raising institutionalisation were made in the sentence proceedings. This issue was raised for the first time on appeal. It is difficult to argue that her Honour fell into error by not considering institutionalisation when the issue was not raised before her.
In Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said: "80 There is a practical expectation that an offender's legal representative will make submissions to the sentencing judge at first instance by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. It might be thought that defence counsel would have ample opportunity to consider whether an argument concerning possible summary disposal should be made in the District Court, given that the acceptance of a plea of guilty to a lesser charge usually follows charge negotiations, as occurred in this case. The fact that a less serious charge is to proceed (and its consequences) would be at the forefront of counsel's thinking. 81 The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]."
The observations in Zreika v R were recently affirmed in Vossos v R [2016] NSWCCA 262 where Bellew J (with whom Macfarlan JA and R A Hulme J agreed) said: "63 The reliance on these matters by counsel for the applicant before this Court amounted to an attempt to litigate issues which had not been the subject of submissions to the sentencing judge. It is appropriate to reiterate that in determining an application for leave to appeal against sentence, this Court is not re-hearing a plea in mitigation. An application for leave to appeal against sentence is not the occasion for the revision and reformulation of the case presented below, and this Court will not lightly entertain arguments that could have been, but were not, advanced at first instance: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [79]-[81]."
That is probably enough to deal with this ground of appeal. However, there are other problems with it. Institutionalisation is a label which is frequently used but its meaning and application to sentencing principles are unclear. What the label seems to suggest is that a person's time in prison will be so lengthy that the person is unable to be rehabilitated and that further time in prison will not achieve that purpose. What the consequences of a finding that institutionalisation might occur, or has occurred, in a sentencing context is also not clear. Does it mean that despite the seriousness of offending, further imprisonment should not take place? Surely not. In this case, because of his own conduct, the applicant had at the time of sentence already spent a considerable amount of time in prison with relatively short periods of living in the community. Her Honour was aware of that and acknowledged it in her reasons. Even so, there remained an obligation on her Honour to impose a sentence which was appropriate to the seriousness of the offending and which was otherwise consistent with proper sentencing principles.
There is also a factual problem with the ground of appeal.
The psychologist discussed the applicant's custodial history at pars 33 - 37 of her report, but did not make any reference to institutionalisation or any assessment of the applicant in relation to the risk of institutionalisation. At par 37 Ms Talmac reported the applicant's desire to move away from poor social influences and lead a normal life. The applicant apparently told her that because he was looking at a long sentence, he was not going to waste the opportunity. He said that he would like to study and prepare himself to be able to work and lead a normal life once he was released. These are not the sentiments normally associated with a risk of institutionalisation. Importantly, at para 57 of her report Ms Talmac stated: "Although the client has a long criminal history, and has spent many years within correctional institutions, he has also demonstrated an ability to form pro-social friendships and is highly motivated to pursue formal education. He is also highly motivated to continue to engage in counselling." Accordingly, there was no expert evidence suggesting a risk of institutionalisation.
In any event, her Honour took into account when sentencing the applicant that he had spent much of his life in custody. This was not an issue which her Honour ignored when imposing sentence. Understandably, however, she did not specifically refer to institutionalisation because it was never an issue in the sentence proceedings and therefore not an issue before her.
This ground has not been made out. Ground 2 - Her Honour erred in characterising the objective seriousness of the offence as being in the worst case category for such an offence.
The applicant submitted that the sentencing judge did not give detailed reasons identifying what specific attributes brought the offending conduct into the worst case category, other than to highlight the main features of the offending conduct and to refer to it as "an act of utter lawlessness". The applicant submitted that in accordance with the authorities, the matters to which her Honour should have directed her attention were the skill and determination of the attempt, the motive, whether it was premeditated, the likelihood of death and the injuries inflicted.
The applicant relied upon what was said by Badgery-Parker J (with whom Carruthers and Finlay JJ agreed) in Regina v Twala (Court of Criminal Appeal (NSW), 4 November 1994, unreported) where his Honour said: "In order to characterise any case as being in the worst case category it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)."
The applicant submitted that the features mitigating the seriousness of the offending, which could have taken it below the worst case category, were the unlikelihood of death based on the downward trajectory of the bullets and the injuries sustained. Although the injuries were serious, they were not such as to place the matter in the category of a worst case.
The applicant submitted that her Honour's finding of worst case objective seriousness was not open on the evidence such that error can be inferred in the sense identified by Spigelman CJ (with whom Simpson J agreed) in Mulato v Regina [2006] NSWCCA 282 at [37]: "37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised." Consideration
This Court has observed on numerous occasions that a finding of objective seriousness is a matter classically within the discretion of the sentencing judge which this Court will be slow to set aside (Mulato v Regina at [37] and Ali v R [2010] NSWCCA 35 at [33]). A finding of objective seriousness is reviewable only by reference to the principles stated in House v The King [1936] HCA 40; 55 CLR 499.
In Mulato Simpson J observed: "46 … The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
In Baines v R [2016] NSWCCA 132 at [15] Basten JA said that the consideration of the objective seriousness of an offence is an evaluative exercise which requires an assessment of a range of factors which may be susceptible of significantly different views; those difficulties are at their height in circumstances where there has been a trial in which the sentencing judge has been able to assess the evidence of the Crown witnesses and the offender in the witness box. To succeed on this ground, the applicant must satisfy the Court that the sentencing judge's finding of objective seriousness was not reasonably open.
Her Honour's finding concerning the objective seriousness of the offence was based on the applicant, motivated by revenge, going to a suburban home, discharging 28 - 31 shots into the door of that home with an intention to kill the female occupant he knew to be behind the door, inflicting life threatening injuries on her and placing a child at grave risk of death. It was, as her Honour characterised it, an "act of utter lawlessness".
Further, in the light of the applicant's statement "I thought maybe she dropped and would've kept hitting her because I done all of them in there, the whole thirty clip plus the one …" he is not assisted by the submission that the downward trajectory of the bullets indicated that death was not inevitable. The express intention, taken with the downward gesture by the right arm, was to kill the victim. Moreover, the injuries suffered by the victim were life threatening and serious, the effects of which both mental and physical will be felt by the victim for the rest of her life.
An instance of offending under s 29 of a premeditated attack constituted by multiple shots fired through the front door of a suburban dwelling in the knowledge that a female occupant was standing directly behind that door is at the very upper end of the range of objective seriousness of the offence.
As noted in the sentencing judgment her Honour found that this offending was within the category of the worst case of attempted murder. While the practice of making a finding in those terms in circumstances where the maximum penalty is not imposed is best avoided it does not necessarily constitute an error (The Queen v Kilic [2016] HCA 48 at [19]). In this instance her Honour's characterisation of the seriousness of the offending was well open to her. This ground has not been made out. Ground 3 - Her Honour erred in the application of the principle of totality when partially accumulating the sentences.
The applicant submitted that an aspect of the totality principle is that it should take into account the burden of the cumulative sentence imposed on an offender. On that issue, the applicant relied upon R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 where the Court (Spigelman CJ; Whealy and Howie JJ) said: "17 The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint."
The applicant submitted that the totality principle applied to constrain the exercise of the sentencing discretion, whether sentences for multiple offences were ordered to be served concurrently or cumulatively, either in whole or in part (Cahyadi v The Queen [2007] NSWCCA 1 Howie J (with whom Adams and Price JJ agreed)). In making that submission the applicant accepted that questions of accumulation and totality were matters within the discretion of the sentencing judge and error would only be found in accordance with the principles in House v The King, i.e. that there was an identifiable error or the decision was unreasonable or plainly unjust.
In this case the applicant submitted that even if the length of the sentence for count 1 was a proper exercise of discretion, the partial accumulation of count 1 and count 3 was unreasonable or plainly unjust when regard was had to: 1. The sentence for count 1 (20 years in total) was capable of encompassing the entirety of the applicant's offending, regardless of any technical distinction between the discrete offences because; 1. The commission of count 3 (unauthorised possession of the pistol) was essential to the applicant's modus operandi in carrying out count 1; 2. The nature of the criminality involved in count 1 (an attack with a pistol in response to the victim's sons' extraction of $5000 from the applicant's mother) necessarily encompassed a level of planning where the applicant would make use of a firearm unconnected to himself. Consideration
The possession of the Glock pistol was a serious offence independent of the pistol's use in the shooting of Ms Hamze. On 10 March 2013 the applicant told Bilal Haouchar that he kept "one" at home in the side of the couch in case he needed to get it quickly.
Her Honour specifically addressed totality in her sentence judgment when considering questions of concurrency and accumulation and also the commencement date for the sentence. There was nothing in her approach to this issue which was contrary to principle. The principle of totality, with respect to accumulation, was considered in Pannowitz v R [2016] NSWCCA 13 where Davies J (with whom Hoeben CJ at CL and Beech-Jones J agreed) said: "40 As the Applicant acknowledged the matter of the extent of accumulation is a matter of judicial discretion made in accordance with established principle: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7]. In Regina v XX [2009] NSWCCA 115 Hall J (with whom Tobias JA and Kirby J agreed) set out at [52] a number of propositions that his Honour said could be derived from the case law. Those propositions focused on a consideration of the similarity, differences and the degree of connection between the offending both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other. To those matters may be added a need to ensure public confidence in the administration of criminal justice to avoid the perception that an offender will not be punished more severely for committing multiple offences: Khawaja v R [2014] NSWCCA 80 at [24]-[25] following R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]."
As indicated, the possession of a pistol by a person not authorised to do so by licence or permit, is a serious offence for which the maximum penalty is 14 years imprisonment and to which a standard non-parole period of 3 years applied. In Cao v Regina [2013] NSWCCA 321 (with the agreement of Simpson and Hall JJ) I reviewed the authorities and observed: "32 The firearm offences also involved a significant level of criminality. In Ayshow v R [2011] NSWCCA 240 Johnson J (with whom Bathurst CJ and James J agreed) at [64] - [73] referred to the policy reasons behind s7(1) Firearms Act 1989 and matters relevant to the seriousness of the offence. His Honour said that the use or purpose of possession of an unlicensed firearm - particularly where it is connected with criminal activities - was regarded as a key factor in assessing the seriousness of offences contrary to the Act. 33 In R v Dusan Krstic [2005] NSWCCA 391 Latham J (with whom Sully and RS Hulme JJ agreed) said at [14]: "14 ... In any event, accepting the applicant's argument for present purposes, possession of a loaded gun for one's own protection is not a matter of significant, if any mitigation, since the policy of the legislature evinced by the enactment of the offence and a maximum penalty of 14 years' imprisonment is to deter and punish possession of firearms per se. ..." … 36 Once the objective seriousness of the offences and moral culpability associated with their commission is appreciated, some measure of accumulation between them was required. This was conceded by counsel appearing in the sentence proceedings. The extent of the accumulation was a discretionary matter for assessment by the primary judge. In this case the extent of the accumulation was modest, given that the offences were discrete and serious. Applying the test of manifest excess approved in Dinsdale, i.e., whether a sentence was "unreasonable or plainly unjust" it is clear that the sentences imposed in this case did not satisfy this test."
In this case the sentence for shoot with intent to murder could not completely comprehend and reflect the criminality of the firearms offence. The undisputed evidence was that within a month of his release from prison, for reasons totally unrelated to the shooting of Ms Hamze, the applicant took possession of an automatic pistol. This was evidence that her Honour could clearly take into account in exercising her discretion on the question of whether to accumulate the sentences because of the additional criminality involved in the firearms offence, and the degree to which such sentences should be accumulated.
No error has been shown in her Honour's exercise of discretion to partially accumulate the sentences. This ground should be dismissed. Ground 4 - The sentence imposed by her Honour was manifestly excessive.
As the undisputed facts concerning this offence make clear, its objective criminality was high. The applicant attended a suburban home, armed with an automatic pistol intending to kill someone, and fired 28 - 31 shots into the front door of the home. The victim, a 47 year old woman, was shot eight times resulting in substantial injuries and psychological harm. The victim's young child was present and was subjected to a serious risk of death. The incident occurred because of a desire by the applicant for revenge against the victim's family.
The applicant was convicted after trial. He showed no remorse or insight into the offending. He was aged 27 at the time of the offending and had a lengthy record for violence and property offences. He had first come in contact with the criminal justice system at the age of 14 and had spent time in juvenile custody. For most of his adult life, he had been in custody (approximately six years). He had a history of substance abuse but had abstained since he was aged 19.
Despite those considerations, the applicant submitted that with respect to an offence contrary to s 29 of the Crimes Act, the JIRS statistics recorded only eight previous cases, including that of the applicant. Accordingly, the statistics did not establish any sentencing pattern. Despite that limitation, the Court was referred to R v Jennar [2014] NSWCCA 331 where this Court dismissed a Crown appeal on the basis that the overall sentence for five offences (robbery whilst armed, three charges of robbery whilst armed with a dangerous weapon and shoot with an intent to murder) was not manifestly inadequate. There the respondent was sentenced to imprisonment for 16 years with a non-parole period of 12 years.
The applicant relied upon the individual sentences imposed in that case, in particular the sentence for shoot with intent to murder of 14 years with a non-parole period of 10 years. The applicant submitted that this was a significantly shorter sentence than that imposed on him.
The applicant also relied upon R v Koloamatangi [2011] NSWCCA 288 where the Court allowed a Crown appeal and re-sentenced a respondent in relation to seven offences. He had pleaded guilty to six charges (aggravated break enter and commit indictable offence; robbery armed with an offensive weapon; robbery with a dangerous weapon; two charges of aggravated detain for advantage and wound with intent to prevent apprehension). He had been found guilty after trial of a single count of shoot with intent to kill, contrary to s 29 Crimes Act. On that count he was resentenced to a non-parole period of 10 years and a total term of 13 years and 4 months. His total sentence was imprisonment for 17 years and 4 months with a non-parole period of 14 years. Again, the applicant pointed out that this sentence was significantly less than that received by him.
On the basis of that material, the applicant submitted that the head sentence and non-parole period exceeded the criminality of the offending and was manifestly excessive in that it was "unreasonable or plainly unjust" (Makarian v The Queen [2005] HCA 25; 228 CLR 357). The applicant made this submission because of the objective seriousness of the crime, the applicable maximum penalty, the applicant's antecedents and subjective features (particularly the risk of institutionalisation and his age) and a consideration of the sentences previously imposed for analogous offences. Consideration
The applicant accepted that in order to make out this ground, he had to demonstrate that the sentence was "unreasonably or plainly unjust". This had to be established in a context where there was no single correct sentence and the judge at first instance was to be allowed as much flexibility in sentencing as was consonant with consistency of approach and application of principle (Makarian at [27]).
In this case it is significant that the statistics were incapable of establishing a range of sentences since the sample was too small. There was the added complication that the facts of each case were very different. The three cases to which the Court's attention was drawn were all cases involving multiple serious offences where considerations of totality were paramount. Even though appropriate sentences had to be imposed for each of those offences before adjustments for accumulation and concurrency took place, as required by Pearce v The Queen [1998] HCA 57; 194 CLR 610, the reality is that such sentences, either intentionally or otherwise, tend to be significantly less than if they were imposed for stand alone offences.
There are other difficulties with the applicant's approach of selecting two or three cases and comparing them with the instant case. The most obvious difficulty is the significant difference in factual circumstances. The other is that the Court is not concerned with cases where some of the facts may be similar, but with a consistent application of principle. The selection of individual cases and a comparison of the sentences imposed in them with the instant case rarely if ever establish a failure to observe proper sentencing principles.
In cases such as the present, what is required of the sentencing judge is to take into account all relevant sentencing principles, together with the particular facts of the case, and having instinctively balanced those components, to impose an appropriate sentence. That is precisely what her Honour did in this case. No error in principle, nor of a House v The King type of error, has been identified.
A proper sentence is determined in a particular case by reference to the offences, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality (Paxton v R [2011] NSWCCA 242; 219 A Crim R 104).
The maximum penalty of 25 years with a standard non-parole period of 10 years is an indication of the seriousness with which parliament views an offence committed in breach of s 29 of the Crimes Act and constitute the range available to the sentencing judge. In Vandeventer v R [2013] NSWCCA 33 Adamson J (with whom McClellan CJ at CL and Rothman J agreed) said: "45 One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive."
It is for that reason that the comparison of the cases referred to by the applicant is of little assistance to the Court. Not only do the cases fail to create an applicable range because of their limited number, but because of the different factual circumstances, both of offending and relating to the offenders, a proper comparison of the application of sentencing principles is not possible.
In Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 it was observed that with respect to consistency of sentencing, what is sought is consistency in the application of relevant principles, not some numerical or mathematical equivalent.
Apart from the objective seriousness of the offending, the applicant was burdened with a number of factors relevant to the sentencing exercise which did not assist him. His record of offending disentitled him to leniency and called for greater weight to be given to retribution, personal deterrence and the protection of society. Her Honour found that his prospects for rehabilitation appeared to be bleak at the time of sentencing. The sentence imposed was proportionate to the seriousness of the offending and has been reached taking into account all relevant sentencing principles. This ground of appeal has not been made out.
In relation to the application for leave to appeal against sentence, the orders which I propose are: 1. Leave to appeal be granted. 2. Appeal dismissed.
GARLING J: Before the jury, the applicant's case supported by his sworn evidence, was that: 1. he did not shoot 30 rounds from a Glock pistol into wooden doors behind which was Mrs Maha Hamze and her 4 year old daughter; 2. the implicated Glock pistol seized by police from his possession was obtained innocently by him from a person he did not identify, within 6 to 8 hours of the shooting; 3. about 10 days before the shooting, having driven to the Lithgow Correctional Centre to visit an inmate with whom he was friendly, he falsely told that inmate that he was going to carry out a shooting at the Hamze house in retaliation for Mrs Hamze's son extorting $5,000 from his mother; and 4. on the day following the shooting, he again drove to the Lithgow Correctional Centre to tell the same inmate, another series of lies, about how he carried out the shooting as a retaliatory act.
Unsurprisingly, the jury, by accepting the Crown case beyond reasonable doubt, was satisfied that the evidence of the applicant was simply not credible.
In this Court, the applicant does not argue that the jury's conclusion that he carried out the shooting was erroneous as a matter of law. However, he argues that the jury should have had a reasonable doubt about whether he had an intention to kill at the time he shot 30 rounds into the wooden doors. He submits, that the jury could not have excluded as a rational inference, the possibility that in firing the rounds through the door, he was recklessly indifferent to human life, or did so with an intention to injure but not to kill.
The evidence before the jury confirmed by questions asked in cross-examination by counsel for the applicant (who did not appear in this Court) of the Crown's ballistic expert, established these facts: 1. damage to the wooden front doors of Mrs Hamze's house was consistent with 30 bullets being fired; 2. one standard size of magazine used with the Glock pistol, contains 30 bullets; 3. there were two groupings of bullets fired through the wooden doors. The first grouping, which was a close one, consisted of bullets being fired straight through one of the two doors. Trajectory rods demonstrated that these shots were fired at a 90 degree angle, that is, generally parallel to the ground; 4. there was a slightly larger grouping of bullets fired through the other wooden door. Trajectory rods indicated that these shots were fired at a downward angle, between 45 and 60 degrees from the horizontal.
It was also uncontroversial that: 1. the shooter knew that there was a woman in the house behind the wooden doors before he commenced shooting; 2. the bullets which were fired penetrated the wooden doors, struck Mrs Hamze and a portable telephone she was holding, and also struck various places within the house, such as the lounge, the staircase, bannister spindles and a rear door; and 3. the bullets struck Mrs Hamze in the lower half of her body.
The applicant argued having regard to, and in addition to, the facts and matters set out in the preceding paragraphs, that contrary to what was submitted to the jury about him telling lies to the jail inmate, he was in fact being truthful when he said that he was only intending to shoot at and hit any male member of the Hamze family who was present when he went to their house. Accordingly, he submitted, he should not have been convicted of the first count on the indictment.
There are number of difficulties in accepting this argument. First, even if his intention was to shoot at and kill a male family member, that was a sufficient intention for the purpose of the offence, even if the victim of the shooting was not the intended target. Secondly, it ignores what the applicant also said to the jail inmate when he said that he thought that the victim had dropped to the floor, and that the bullets he shot downwards would have kept hitting her. Thirdly, the bullets were not sprayed around in a random or reckless fashion, rather they were aimed and fired in two distinct groups. One group through one door in an essentially horizontal directions, and the second group downwards through the other door. These bullets were carefully aimed and grouped. They were the antithesis of reckless shooting. Fourthly, the clear purpose of the applicant in carrying out the attack was to exact revenge on the Hamze family for the earlier extortion of his mother.
The proposition fundamental to the applicant's submissions, namely that a lesser intention than one to kill was a viable option for the jury to consider is, in my view simply, simply untenable. The matters to which I have referred point inexorably to the only realistic conclusion, namely that the applicant was guilty of the offence in Count 1.
For these reasons, I agree with the orders proposed by the Chief Judge.
The applicant also sought to leave to appeal against his sentence. I agree with the Chief Judge's reasons for concluding that there was no error in the sentence imposed.
I would grant leave to appeal and dismiss the appeal.
BEECH-JONES J: I agree with Hoeben CJ at CL and the judgment of Garling J.

[2011] VSCA 156

RG v R

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