Stanford v Regina

Stanford v Regina - [2007] NSWCCA 73 - NSWCCA 2006 case summary — Zoe

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Monday 26 March 2007 Christopher Lee STANFORD v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with the orders proposed by Rothman J and substantially with his reasons. I agree with the reasons of Hulme J. 2 HULME J: In this matter I have had the advantage of reading the reasons of Rothman J and can accordingly be briefer than would otherwise be required. I agree with the conclusions and substantially with the reasons of his Honour in respect of grounds (i), (iii), those parts of ground (iv) as deals with intoxication and Judge Sides' conclusion that the discharge of the weapon was "in a very dangerous way", ground (v) and ground (ix). I also agree with the orders his Honour proposes. 3 Subject to what follows, I agree also with his Honour concerning ground (ii). The statement of Sides DCJ as to accumulation quoted by Rothman J may well have been correct had his Honour referred to there being a need for "some" accumulation of the sentence imposed for count 1 with those imposed in respect of counts 2, 3 and 4. However, full accumulation was not appropriate unless totality was otherwise taken into account by, for example reduction of the sentences imposed on some of the counts from that which would otherwise have been appropriate. Judge Sides' remarks indicate that he did not effect any such reduction and his statement that because "the offences involved separate criminal acts … the principle of totality requires accumulation of the sentences as between count 1 and the other three counts" when, as appears, his Honour was talking of full accumulation was wrong. In these circumstances, His Honour erred in his decision to fully accumulate the sentence imposed on count 1 with those imposed in respect of the other counts. 4 His Honour also erred, albeit in the opposite direction, in treating the 3 malicious wounding offences as one and imposing wholly concurrent sentences for these offences. Whether or not the 3 victims of these offences were wounded by one shot or different shots, maliciously wounding 3 persons is more heinous than maliciously wounding one - c.f. R v Price [2004] NSWCCA 186 at [46-51]; R v Janceski [2005] NSWCCA 288 at [21-23]. 5 Grounds (vi) (vii) and (viii) assert that his Honour failed to take into account, either at all or sufficiently, a number of factors namely:- (i) Provocation by the victim - see s21A(3)(c) of the Crimes Sentencing Procedure Act; (ii) That the Applicant is unlikely to re-offend - s21A(3)(g) of that Act; (iii) That the Applicant's offending meant that he had lost his chosen career; (iv) The Applicant's youth - he was 20 at the time; (v) The Applicant's plea of guilty; (vi) The Applicant's good character; (vii) The Applicant's non-violent disposition; (viii) The Applicant's good work record; (ix) That the Applicant was in a stable relationship with a young lady and her children; (x) The Applicant did not consume illegal drugs at all and alcohol to only a very limited extent; and (xi) That the Applicant had excellent prospects of rehabilitation. 6 So far as the first of these is concerned, the lengthy quotation from Judge Sides' remarks near the beginning of Rothman J's reasons make it clear that his Honour was fully conscious of the matters relied on as provocation. Judge Sides later observed that the Applicant had plenty of time to cool off before he arrived at his father's place and between his father's place and the house at Austral. The latter reference may have overstated the matter for the evidence was that the 2 premises were not more than some minutes driving apart but I see no reason to disagree with the substance of what his Honour concluded in this respect. There was no reasonable relationship between the conduct that had affronted the Applicant and his, potentially deadly, response. 7 His Honour made no mention of the second of the matters listed above in the summary of these grounds although he did conclude that the Applicant was of good character and that the "offence is an isolated aberration and the Offender's prospects of rehabilitation are excellent". Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) contains lists of factors, described as "aggravating" and "mitigating" that, if relevant and known to the court, are to be taken into account in determining an appropriate sentence. Included in the list of mitigating factors are:- "(f) The offender was a person of good character; (g) The offender is unlikely to re-offend; (h) The offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise." 8 The separate specification of the three indicates that a sentencing judge should direct attention to each. Although there will in many cases be a considerable degree of overlap, particularly between the matters the subject of paragraphs (g) and (h), the matters dealt with are not identical and in the circumstances it is impossible to avoid the conclusion that his Honour erred in not expressly addressing the Applicant's likelihood of re-offending. That said, the likelihood of a person appearing for sentence re-offending is so elementary in any sentencing exercise that I would not be prepared to conclude that his Honour did not consider it. His findings on the matters the subject of paragraphs (f) and (h) meant that he could reach only one conclusion in respect of the likelihood of re-offending and accordingly I am not prepared to conclude that his omission to expressly advert to the topic meant that the sentence imposed was in consequence affected by error. 9 His Honour expressly recognised, and in terms that provide no basis for concluding that he undervalued them: the fact that the Applicant's offending meant that he had lost his chosen career; that he was of good character and of non-violent disposition; that he was "an outstanding apprentice and employee"; that he was in a stable relationship with a young lady and her children; that he did not consume illegal drugs at all and normally drank liquor to a moderate extent; and had excellent prospects of rehabilitation. His Honour also said that the Applicant's relative youth entitled "him to some leniency by giving greater weight to rehabilitation than to deterrence". 10 What his Honour said on the topic of the Applicant's pleas of guilty was:- "The Offender is entitled to have his pleas of guilty reflected in mitigation of penalty. This is done on two bases: to reflect the utilitarian benefit to the criminal justice system and to reflect contrition: s22 Crimes (Sentencing Procedure) Act 1999; R v Sharma (2002) 54 NSWLR 300. The extent to which penalty is mitigated is dependent upon the circumstances of each case but it must be discernable: R v Ponfield & Ors (1999) 48 NSWLR 327; R v R [2000] NSWCCA 163; R v Thomson & Houlton (2000) 49 NSWLR 383. However, it is not necessary to mathematically quantify any discount: Makarian v The Queen [2005] HCA 25. The Offender pleaded not guilty on 13 September this year to an indictment containing a total of 6 counts. The Court fixed 7 November 2005 as the trial date. The pleas of guilty to the current indictment were entered on that day. The trial had an estimate of five days. The utility of the pleas of guilty has been reflected in the sentence to be imposed." 11 The Applicant's submissions included the following:- "(ii) It is likely that Sides DCJ did not appreciate that the Applicant had effectively pleaded at the first available opportunity. The indictment that the Applicant pleaded (to), offered by the Crown on that day, not only consisted of four counts as opposed to the original indictment which contained six counts, but was of a significantly different nature reflecting the view that the Prosecution had reached as to his criminality (with a charge for the possession firearm charge taken into account on a Form 1). The original indictment had as its first count a charge of firing a firearm towards a dwelling with reckless disregard at Austral (a much more serious charge under s93GA Crimes Act with a heavier penalty) and a further charge of firing a firearm in a manner likely to injure at West Hoxton (a more serious version of a charge under s93(1)(c); (iii) While it is impossible to know what discount was allowed, it is highly unlikely that Sides DCJ gave the Applicant full benefit for his plea." 12 The transcript of the sentencing hearing reveals that Judge Sides was informed that on the day proceedings against the Applicant were listed for trial there had been discussions between the Crown Prosecutor and counsel for the Applicant and as a result an indictment was presented containing 4 counts instead of a previous indictment containing 6, and that later there had been an amendment to one of the 4 counts. Remarks of his Honour recorded in the transcript indicate that he saw the amendment which had been made in handwriting. The transcript does not indicate that his Honour was made aware of the details of the charges that had been later omitted but in the circumstances referred to there is no basis for concluding that his Honour was not fully aware of the facts so far as they were material. 13 It would undoubtedly have been preferable had his Honour provided some indication of the allowance he in fact made for the Applicant's plea but in accordance with the authorities to which his Honour referred, he was not obliged to do so. 14 Rothman J has referred to a passage in the decision of R v Lawrence [2005] NSWCCA 91. I do not see that passage as demonstrating legal error in the approach Judge Sides adopted. As an earlier passage in R v Lawrence makes clear, the sentencing judge whose decision was under review in that case had referred to the plea of guilty but did not refer to the fact that he had taken it into account, and did not quantify the benefit to the accused by reason of the utilitarian value of the plea. This Court's decision on the complaint that the sentencing Judge fell into error in failing to give proper weight to the plea of guilty and in failing to make plain the fact that, and the extent to which, the Applicant's sentence was reduced for the plea was expressed, at [15], in the following terms:- "However, in view of his Honour's long experience and the structure and length of the sentence he imposed, I am not prepared to act on the basis that his Honour failed to take into account the plea, or that he failed to give it appropriate weight. I think the likely situation is that contended for by the Crown: that his Honour commenced with a sentence of 36 months and applied a full discount. Accordingly, I would not uphold this ground of appeal." 15 Here it is not easy to deduce what the discount was that Judge Sides allowed. However, he also is very experienced in criminal law and I see no basis for concluding that, notwithstanding that experience and his Honour's statements that I have quoted, one should infer that appropriate weight was not given to the plea. While of course there were other matters that argued for leniency, it must be recognised that for offences carrying maximum periods of imprisonment of 10 years and 7 years respectively and which his Honour characterised as towards the upper end of the range(s), the sentences imposed were of 3½ and 3 years respectively. 16 Comprehensive treatment of these grounds would require me to deal with a further argument of the Appellant that the length of the sentences imposed demonstrates that, even though a number of the matters identified in the grounds relied on were mentioned by his Honour, Judge Sides failed to take into account, either at all or sufficiently, these factors. In light of my conclusions that his Honour erred in other respects I do not need to pursue this aspect. 17 Similarly, I do not need to pursue the tenth ground, viz. that the sentence imposed was "unduly harsh and severe". I have, as I have indicated, reached the conclusion that his Honour erred. I have also reached the view that the case is one where, applying correct principles and approach, some other lesser sentences are warranted in law and should have been passed.

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18 The formulation of the offence the subject of the first count and the objective circumstances of that offence do not place it as high as half way up the scale of offences under s93G. Judged by the criteria of s35(1), I take the same view of each of the offences under that section. The offences charged were of malicious wounding, not maliciously inflict grievous bodily harm which is inherently more serious. 19 In light of the above remarks and those of Rothman J, I do not regard it as necessary to canvass again all of the other considerations to be taken into account including those to which s21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) refers. Operating to reduce the sentence below that which the objective facts themselves might indicate are the Applicant's youth, his exemplary prior record, the loss of his chosen career, the fact, as Rothman J has made clear, that alcohol is in some respects a mitigating feature in the particular circumstances here and the high likelihood that the Applicant will not re-offend. On the basis of the evidence before Judge Sides, and some further adduced in this Court showing that, since sentence, the Applicant has done what he could to improve himself, one would conclude that personal deterrence and the protection of the community have little if any part to play in the determination of an appropriate sentence. Considerations of general deterrence and retribution of course still have a significant part to play even though the Applicant's youth calls for some attenuation of the weight to be afforded to the former. I might perhaps add that, for reasons apparent on a reading of the decision in R v Hearne [2001] 124 A Crim R 451 at [28] to which I was a party, that attenuation would be small. At age 20 people know they should not fire guns at other people or where persons might be. 20 Because it seems clear that the Applicant's plea occurred on the day the first count took its final form, I would allow a discount of the order of 25% for that plea. What the position was in relation to the other counts is not clear. For all the Court knows these were also included in the 6 count indictment and it does not seem to me to follow that the Applicant is necessarily entitled to the same discount on them. After all the 25% discount is intended to in part reflect a guilty plea at an early stage which will commonly be at the time of committal and prior to the costs and labour preparatory to trial being incurred. I would allow only something of the order of 20% in the case of the 3 malicious wounding offences. 21 Judge Sides found special circumstances in the fact of accumulation, the Applicant's age and the absence of prior convictions. As expressed, I do not regard this last mentioned as a relevant factor in this regard although the fact that this is the Applicant's first time in custody does justify the finding, as do the other matters. 22 However the number and seriousness of the Applicant's offences means that a significant period of custody is required. The assessments of Judge Sides and myself as to the Applicant's likely future carries with it the implication that he is unlikely to need or benefit from a lengthy period on parole. Accordingly, while like Rothman J, I would allow the finding of special circumstances to operate in the division of the individual sentences, there are limits as to the extent to which the finding of special circumstances should be given effect to in the ultimate effective sentence. It is not appropriate to reduce the effective non-parole period to less than Rothman J proposes and unnecessary to increase the period during which the Applicant will be eligible for parole. 23 The sentences on all 4 offences should be accumulated. The Applicant's criminality increased when he committed the second group of offences as it did also as or when he inflicted a wound or wounds on each of the 3 victims of the malicious wounding offences. However the principle and considerations of totality mean that that the accumulation should be only partial. The result of the orders Rothman J proposes will be that the Applicant will have an effective non-parole period of 2½ years and a further period of 12 months when he will be eligible for parole. Although his offences were numerous and serious, given the circumstances of his offending, his past and likely future, this is an appropriate result. It may be arrived at in a variety of ways and that chosen by Rothman J is appropriate. 24 ROTHMAN J: Christopher Lee Stanford applies for leave to appeal sentences imposed upon him by his Honour Judge Sides QC on 15 December 2005. If leave is granted the applicant seeks to appeal the sentences imposed on ten grounds, to which I will refer later. 25 The applicant was sentenced in relation to four offences: Count 1: Firing a firearm with disregard for safety of any other person (date of offence 23 January 2005), contrary to section s93G(1)(c) of the Crimes Act 1900 (NSW), for which there is a maximum penalty of imprisonment for ten years; and three counts of malicious wounding (date of offence 23 January 2005), contrary to s35(1)(a) of the Crimes Act 1900 (NSW), for which the maximum penalty is imprisonment for seven years for each. Over and above those four counts there was a Form 1 offence taken into account: use an unauthorised prohibited firearm, namely a pump action twelve gauge shotgun, without a licence or permit (date of offence 23 January 2005), contrary to s7(1) of the Firearms Act 1996 (NSW). 26 The applicant was sentenced to an effective overall sentence of a non-parole period of three years and six months to commence on 25 January 2005 and expire on 24 July 2008, with the remainder of two years to commence on 25 July 2008 and expire on 24 July 2010. That overall effective sentence was made up in the following way: Count 1: Taking into account the matter on Form 1, non-parole period of eighteen months to commence on 25 January 2007 and expire on 24 July 2008. Total term three years six months to commence on 25 January 2007 and expire on 24 July 2010. Counts 2 - 4: Non-parole period of two years to commence on 25 January 2005 and expire on 24 January 2007. Total term of three years to date from 25 January 2005 and expire 24 January 2008. 27 If leave to appeal is granted the applicant raises ten grounds of appeal as a basis for a reduction in the sentence. The applicant claims that the sentencing judge erred in a number of respects: (i) In the assessment of the types of penalties appropriate, namely, that a custodial sentence was mandated; (ii) In the accumulation of sentences; (iii) In the failure to take account of the fact that the firearms offence could be dealt with summarily; (iv) In treating the drunkenness as an aggravating feature; (v) In the manner of the treatment of the Form 1 offence; (vi) In the failure to take into account mitigating factors; (vii) In failing to take into account sufficiently the loss of career; (viii) The failure to take sufficient account of other favourable subjective factors, being youth, the plea of guilty, good character, non-violent disposition, good work rapport, stable relationship, no involvement with drugs and excellent prospects of rehabilitation; (ix) Parity with a co-offender; (x) An imposition of a sentence which was unduly harsh and severe.

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Facts 28 The applicant ultimately pleaded guilty to the offences in question and agreed facts were tendered to the sentencing court. His Honour Judge Sides summarised the facts in his Remarks on Sentencing in the following way: "On the afternoon of 22 January 2005, the offender was at home at Narellan with his partner and her daughter. Members of his family, including his brother Shane, were present, as well as friends (including Peter Davis, also known as Jackson). The offender, his brother Shane and Peter Davis were drinking liquor during the afternoon. The victim Grogan was at his home in Austral that afternoon. The other two victims, Bressington, and Pollack were also there. During the afternoon and into the evening, the victim Grogan and Peter Davis exchanged SMS text messages. The frenzy of messages started over an incident that had apparently occurred very early that morning at the victim Grogan's place. At some stage after the evening meal, the offender's partner Tammy Siminau overheard the offender speaking on the phone and saying, 'Please don't come around here, I don't want any trouble.' There is no evidence about the identity of the person to whom the offender spoke, but it is open to the Court to conclude that it was related to the text messaging that was taking place. Having tired of the exchange of text messages, the victim Grogan rang Peter Davis. By this time it was after 11pm. He asked Mr Davis what his problem was. Mr Davis responded, 'You're my problem. I just want to smash your head in'. After Mr Grogan said, 'Well let's do it then', Mr Davis gave him the offender's address. Following further text messages, the victims Grogan, Blessington, Pollack and two others went to the offender's place. According to Tammy Siminau, they arrived in two vehicles. Some of them had baseball bats. By the time they arrived at the offender's place, he and his partner were in bed. His partner's daughter and her daughter's friend were also in bed. The offender and his partner went to bed believing that Peter Davis had left their home. After the victims and the others arrived at the offender's place, they demanded to speak to Peter Davis. The offender and his partner told them that Mr Davis was not there and that they should, 'Fuck off'. At one stage the victim Grogan said, 'I love you boys, I just want that maggot'. Clearly this was a reference to Peter Davis. As the victims and their companions were about to leave the offender's place, Peter Davis appeared, armed with a baseball bat. A couple from the victims' group went towards Peter Davis but the offender and his brother stopped them making contact. The victims and their companions eventually were persuaded to leave. By this time no blows had been exchanged and no one was injured. The victims returned to the home of the victim Grogan at Austral and commenced to watch television. Meanwhile, the offender, his brother and Peter Davis drove from his home in Narellan to his father's place in West Hoxton. Once there, the offender went inside and returned to his vehicle with a pump action shotgun and ammunition. Then he drove to the victim Grogan's home at Austral. On the way there his brother loaded the shotgun. When they got to Eleventh Avenue, Shane Stanford fired two shots from the shotgun whilst seated in the front passenger seat of the offender's vehicle. Pellets struck the cabin of a truck parked on the grass verge between the house of the victim Grogan and that of his neighbour. The offender stopped his vehicle, took the gun from the brother and, whilst still seated in the driver's seat discharged it a number of times out the front passenger's window. His brother was still in the front passenger seat at that time. The victim Grogan emerged from his house but was forced to dive to the ground when he realised the gun was being discharged towards his house. The victim believed that he heard a total of eight shots. The offender drove off. As he did so, the victim Grogan recognised him and his two passengers. That is, his brother and Peter Davis. As they drove off, Peter Davis yelled out, 'Die you maggot cunts'. The discharge of the shotgun in Eleventh Avenue gives rise to Count 1. The victim Grogan then entered his car with the victims Pollack, Bressington and Nicole Pollack. They drove to where the offender's father lived in West Hoxton and parked behind the offender's four wheel drive. The three men got out of the car and began to walk to Mr Stanford's house. As they did so, the offender began firing the shotgun from near a carport at the front of his father's house. Pellets struck the victim Grogan on the head and arms, the victim Bressington in the chest and arms and the victim Pollack in the leg. This gives rise to the three counts of malicious wounding. Pellets sprayed the off-side of the victim's car and the near side of the offender's vehicle. Nicole Pollack escaped injury. The victims got back into their car and drove to Liverpool Hospital, where they received treatment. Because of their position, the doctors did not remove the pellets from the victims. Peter Davis helped the offender pick up the empty cartridges. As he was doing this, he saw pellet holes in the canopy of the offender's vehicle and asked the offender what he was shooting at. The offender said that he was pumping them into the car. When Peter Davis said, 'Somebody could have been killed', the offender said, 'They came to my house, I fuckin' hope they're dead'. After the offender put the empty cartridges in a bag, he walked into the bush, telling Mr Davis not to follow. Mr Davis and Shane Stanford then left. Later that morning, police found four shotgun cartridges near 125 Eleventh Avenue and more were found outside. The police also found spent cartridges in the offender's vehicle. Police arrested the offender on 25 January that year. During an interview with the police, he agreed that the victims and others had been to his house looking for Peter Davis. He said afterwards he went to his father's place but he did not leave. He told the police that the victims came to his father's place and he heard gun shots. He denied discharging the gun and he denied any prior knowledge of the shotgun. The police did not recover the shotgun." 29 Further, the Court found that the applicant drove to his father's house to obtain the gun and thereafter proceed to the victim's house. The applicant was the person who went inside and retrieved the gun. Once at Austral the applicant took the gun from his brother and discharged it himself. He did so, according to Sides DCJ, in a very dangerous way, holding the gun in front of his brother who was still in the other seat. 30 The applicant has no history of criminal charges or offences and it is fair to say, as did his Honour, that the conduct which gave rise to these charges is aberrant. The sentencing judge accepted that he was a person of a good character and non-violent disposition. He also accepted that he had consumed excessive quantities of liquor on the day of the offence but that he did not have a drug or alcohol problem, meaning, in the case of alcohol, that he did not normally drink more than to a moderate extent.

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[13] Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct." ( Pearce v The Queen (1998) 194 CLR 610 at 614-615, per McHugh, Hayne and Callinan JJ). 36 The High Court in Pearce v The Queen, supra, in dealing with the concept of "double jeopardy", went on to say: "At first, the focus was upon punishment twice for the same offence. More recently, however, some legislation in Australia has sought to deal with whether an offender can be punished twice for the same act or omission. … [40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission for the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." ( Pearce v The Queen at 622, 623 [38], [40]) 37 In the instant proceedings and the conduct which gave rise to the charges, only one kind of criminal act, performed at the same time and certainly as one course of conduct, occasioned the three charges for malicious wounding. The Crown does not suggest it was inappropriate for each of the malicious wounding sentences to be entirely concurrent. 38 Notwithstanding the absence of a Crown appeal and the acceptance of the treatment of the three malicious wounding charges, there is error in the treatment of the offences as one. In R v Janceski [2005] NSWCCA 288, Hunt AJA (with whom Spigelman CJ and Howie J agreed) said: "21 The first error to which the Crown points is that the two sentences are wholly concurrent. There are at least two distinct categories of cases in which problems with concurrency arise. The first is when the offender is being sentenced for discrete offences committed on different occasions. The concurrency of sentences for that category is now governed largely by Pearce v The Queen (1998) 194 CLR 610, which overruled the practice previously common in this State of fixing one of several concurrent sentences to reflect the total criminality of the offender for all the offences. The second category is where the one incident or enterprise gives rise to different charges, usually where there is more than one victim. That category has at least two sub-categories. An example of one of those subcategories is where the offender repeatedly fires a gun, injuring a number of different persons, each as a result of a different action by the offender, although part of the one incident, when it is appropriate to take into account the fact that the offences were substantially contemporaneous and connected: Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168. The other sub-category is where the one action by the offender causes a number of people to be injured and where separate charges are laid in relation to each victim. That is the present case.

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I adopt, with respect, those comments. 39 Such error was to the benefit of the applicant. However, the principles of totality and double jeopardy would require that any separation of the sentences imposed for each of those offences would not in this instance add to the overall sentence imposed. 40 The fact that the three malicious wounding charges were made entirely concurrent does not affect whether or not those malicious wounding charges should have been made partially or totally concurrent with the charge of firing a firearm with disregard for safety. 41 It should be reiterated that the applicant, who was drunk, had been in bed had been woken by the victims who were intent on assaulting Davis; interceded in that assault; went back to bed; was woken again by the victims intent on the same purpose; demanded again that the victims leave; and once more interceded to stop the victims from assaulting Davis. It was only after that second occurrence that the applicant went with his brother, obtained the shotgun and fired it. The three malicious wounding offences occurred when the applicant returned to his father's house, minutes later, and was pursued by the victims. In those circumstances it is not open to treat the offences as unconnected. While the discharge of the firearm offence is a separate offence from the malicious wounding (they having occurred some minutes apart) they are properly regarded as a connected series of events or overlapping events. Yet the sentencing judge imposed consecutive sentences as that term is ordinarily understood: R v O'Donohue (No 2) [2001] NSWCCA 495 per Bell J, with whom Heydon JA and Dowd J agreed. 42 Where, as here, more than one sentence of imprisonment is being imposed, the principles embodied in Pearce, above, are relevant as are the principles adumbrated by the High Court in Mill v The Queen (1988) 166 CLR 59: "Where the principle [of totality] falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred." ( Mill at 63). 43 The purpose of the totality principle is to ensure that sentences, when added together, do not exceed a greater punishment than is appropriate for the totality of the criminality involved in the offences: R v Hughes [2005] NSWCCA 235.

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44 The determination by a sentencing judge as to how much, if any, of different sentences will be served concurrently is an exercise of discretion. An appellate court will interfere with such an exercise only on one of the well-known criteria relating to discretionary judgments: R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540, at [7] per Simpson J, with whom Mason P agreed. 45 Those criteria include that all relevant factors have been taken into account, and nothing else; that there is no mistake of law or fact; and manifest error. In this case, the sentencing judge was concerned with one course of conduct being a gross overreaction to the conduct of the victims, which one would have thought would ordinarily give rise to some concurrence in each of the sentences. However, as the passage from Mill, above, makes clear, the same result can be achieved by making each sentence lower, rather than making the sentences wholly or partially concurrent. It is, therefore, necessary to examine this issue at the same time as the issue relating to the length of each sentence. 46 His Honour's consideration of the appropriateness and extent of concurrency was confined to the following statement: "Although related and committed in close temporal proximity, the offences involve separate criminal acts. For this reason, the principle of totality requires accumulation of the sentences as between count 1 and the other three counts. This, his age and absence of prior convictions justifies finding special circumstances." 47 His Honour, as already stated, made the sentence on Count 1 consecutive with the non-parole period on Counts 2, 3 and 4 and, as such, no part of the prison sentence for Counts 2, 3 and 4 was to be served concurrently with Count 1. If his Honour is to be taken to be saying that, because separate criminal acts are involved, even in one uninterrupted course of conduct, there is a requirement for consecutive sentences, then his Honour would be wrong. This, in my view, is what his Honour was saying. (iii) Failure to take into account that the firearms offence could have been dealt with summarily 48 The sentencing judge made specific reference to the fact that the three malicious wounding counts were capable of summary disposal. He made no such comment in relation to the firearms offence, which, it is said, could also have been dealt with summarily. It is said, by the applicant, that whether the offence could be dealt with summarily was a relevant consideration that should have been taken into account by the sentencing judge, but was not. 49 The fact, if it be the fact, that a contravention of one or other of the criminal offences can be the subject of summary disposal may be a matter relevant on sentence. The more serious offences, under such provisions, are dealt with in the District Court. The applicant concedes that it would have been inappropriate, given the seriousness of the charges, for the matter to proceed in the Local Court. As such, any impact upon the sentences of the circumstance that, as a theoretical possibility, the charges may have been heard in the Local Court, must be negligible. 50 A court may have regard on sentence, in a matter dealt with by the court on indictment, to the fact that the matter could have been dealt with by way of summary disposal: R v Sandford (1994) 72 A Crim R 160 at 195. The obverse is also true; a court may choose, for good reason, not to have regard to that fact. In this instance the prosecuting authority chose to have the matter dealt with in the District Court. The exercise of that power was correct and cannot be the subject of criticism. So much is conceded by the applicant. The criminality of the offence in question was too serious to be dealt with by the Local Court. In those circumstances, the sentencing judge is required to deal with the matter in accordance with ordinary principle. The sentencing judge is required to have regard to any standard non-parole period, the maximum sentence that may be imposed and the general principles applicable either under the common law or statute to the fixing of the sentence. The jurisdictional limit for a sentence, if the matter were to have been processed in the Local Court, is not a constraining element (or any element) in those circumstances: R v Crombie [1999] NSWCCA 297 at [14]-[16]; R v El Masri [2005] NSWCCA 167 at [29], [30]. This ground of appeal fails.

[23]

(iv) Error in taking into account matters as aggravating the offences: intoxication 51 While the ground of appeal is framed more broadly, the applicant concentrates in his submissions on the treatment by the sentencing judge of the question of the intoxication of the applicant. The evidence before the sentencing judge is, as set out, that the applicant was drunk and had been unusually consuming drinks mixed by others. There are some inconsistent aspects of the findings of his Honour. His Honour also held that the applicant may have acted irrationally because of the consumption of liquor, in which, it seems, his Honour is using the intoxication as an ameliorating effect. Nevertheless, his Honour expressly refers to the intoxication, particularly in the handling of a dangerous weapon, as an aggravating feature of the offence in question. 52 The effect, if any, of the intoxication of an offender on the sentence to be imposed, or the culpability of the offence, has been dealt with by the courts on a number of occasions. 53 By and large, the cases fall within two classes. There are those classes of offences in which an offender has voluntarily embarked upon a course, for a range of reasons, which has led to his/her intoxication and then voluntarily embarked upon a course that is criminal conduct. High range PCA offences are the most obvious example. Dangerous driving where intoxication is an aggravating circumstance is another. The courts have made it clear, in relation to that class of conduct, that intoxication will not ameliorate the offence and, unless it is itself an element of the offence, will generally aggravate the offence. The courts have also made it clear that, generally speaking, the reason for the consumption of the alcohol will be irrelevant. "[142] Generally speaking, the reason for the consumption of alcohol will be irrelevant. The offence is not concerned with punishing the drinking of alcohol, but the driving thereafter. Therefore, it is of no significance that the alcohol was consumed at a wake or a celebration, or because the person was abusing alcohol either generally or on the particular occasion because of some emotional or psychiatric condition." ( Application by the Attorney-General under s37 for a Guideline Judgment Regarding High Range Prescribed Concentration of Alcohol (2004) 61 NSWLR 305 at [142]). 54 Further, the courts have made clear that subsequent offences of the same kind will be treated even more seriously. 55 The principles were dealt with by this court in R v Coleman (1990) 47 A Crim R 306. After discussing the effect of intoxication on the guilt or innocence of an accused, the Court dealt with the effect, if any, on sentencing. It said: "Only one matter of general principle was debated, and that was the extent to which the appellant was entitled to have his intoxication at the time of this offence taken into account in mitigation. The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character. (I have not intended by those examples to limit the extent to which intoxication may be taken into account: see, generally, Sewell and Walsh v R (1981) 29 SASR at 12 at 14-15; 5 A Crim R 204 at 207.) Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate." ( R v Coleman (1990) 47 A Crim R at 327, per Hunt J, with whom Finlay and Allen JJ agreed). 56 In this instance, the applicant became inebriated at his place with friends. He was consuming alcoholic drinks mixed by others and became uncharacteristically drunk to an extent that overwhelmed him. He went to bed and was awoken by the victims in search of Mr Davis. He then proceeded to prevent an assault on Mr Davis. The comment by his Honour the sentencing judge that the reaction to the disturbance and agitation by the victims was possibly affected by his inebriated state, is an inference with which it is difficult to cavil. The aberrant nature of the conduct supports the proposition that the applicant's overreaction was induced by the alcohol. The criminal conduct, however reprehensible, was an irrational response to the conduct of the victims, which irrationality was brought about by the effect of the alcohol. In those circumstances the intoxication is properly used as a mitigating factor. 57 Having come to that view, it cannot be stressed enough that the use of a firearm once intoxicated must be understood as conduct of the most serious and dangerous kind. The mitigation, in this case, does not derogate from that principle. The mitigation arises, not because the intoxication ameliorates the use of the weapon, but because the intoxication ameliorates what is otherwise an irrational reaction to the conduct of the victims, part of which reaction was the use of the weapon. 58 The other matter raised under this ground of appeal, with which it is necessary to deal, is the assessment by the sentencing judge of the objective seriousness of the offence. As earlier stated, the offence with which the applicant was charged was an offence under s93G of the Crimes Act 1900 (NSW). The particular indictment charged an offence under s93G(1)(c). That section provides: "(1) Any person who: … (c) Carries or fires a firearm … in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person, is liable to imprisonment for ten years." 59 As can be seen, by the reading of that provision, it covers a range of offences of varying seriousness. The categorisation of seriousness will always depend upon the particular facts of an offence. However, all other things being equal (which they cannot be) the offences range from carrying to firing and within each one of those categories there is conduct "likely to injure or likely to endanger the safety of a person", or "likely to injure or endanger property", or "with disregard for the safety of one or more persons". In terms of objective seriousness, endangering property would be usually less serious than endangering a person. Similarly, disregard for the safety of others is less serious than a manner likely to injure or endanger those persons. 60 In this instance, the applicant was charged with firing a firearm with disregard for the safety of the victims. Given the range of offences covered by the provisions of s93G(1)(c) it would be difficult to categorise the offence as a worst case. The categorisation of the objective seriousness of an offence is a matter for the evaluation of the sentencing judge and an appellate court will interfere in the well-known circumstances applicable to appeals from evaluative judgments: R v Dang [2005] NSWCCA 430 at [22]; R v Mulato [2006] NSWCCA 282. 61 Ground (iv) also included complaints that Judge Sides erred in characterising the offence under s93G as one towards the upper end of the range and in concluding that the discharge of the weapon was effected "in a very dangerous way holding the gun in front of his brother who was still in the other seat". So far as the first of these is concerned, the offence charged was of firing a firearm "with disregard for the safety of any other person", and not of firing it in a manner likely to injure or endanger the safety of such a person, offences which also fell within s93G and which, it was submitted, were inherently more serious than that with which the Applicant was charged. 62 The only evidence as to the Applicant's commission of the offence was contained in a "Summary of Facts" which became Exhibit A. So far as is presently relevant that records that the Applicant drove to the scene of the first offence. There, "Shane Stanford (the Applicant's brother) fired two shots from the passenger seat which struck the passenger side cabin of a white truck parked on the grass verge between Grogan's house and the house next door. According to Davis and Shane Stanford, the accused then brought the car to a halt and began firing the shotgun out of the front passenger window of his vehicle. Grogan alleges that when he heard a loud bang he ran to his front door. He saw the accused's black Suzuki Sierra parked about 50 metres away between his house and next door." 63 It was submitted that it is far from clear that the act of firing a long armed weapon through the passenger window when the vehicle was stopped did really represent any increased danger. 64 Both of the complaints presently under consideration are made out. It seems clear that his Honour's remark to the effect that the discharge of the weapon was "in a very dangerous way" was directed to the situation of the Applicant's brother. There was nothing to suggest that the vehicle was itself damaged by the shot and the evidence is consistent with the length of the barrel running past that person and indeed the end of the barrel being out the window of the vehicle. The evidence does not justify the conclusion reflected in Judge Sides' words just quoted. 65 His Honour was also in error in regarding the offence as "towards the upper end of the range". The formulation of the charge was such as to suggest it was towards the lower end of those for which s93G provided and although I do not take the view that all charges formulated by reference to disregarding the safety of others must be less serious than the others for which the section provides, there was nothing in the facts of the case to take the offence into the upper range. 66 I do not deal with the other matters raised under this ground because they do not impact upon the orders that I propose.

[24]

(v) Error in respect of the Form 1 offence 67 This ground asserts that Judge Sides erred in his manner of treatment of the Form 1 offence, viz. of using a firearm without a permit. The complaint is in four parts:- (i) Judge Sides erred in apparently taking the Form 1 matter into account on all offences. (ii) Judge Sides erred in failing to state the principal offence in respect to which the Form 1 offence was being considered. (iii) If the reference was to personal deterrence, this was not really a relevant matter, and (iv) Insofar as the Form 1 offence involved the use of the Applicant's father's shotgun in the commission of the offences to which he had pleaded guilty, no further matter of retribution or deterrence was warranted. 68 As I understand the Remarks on Sentence particulars (i) and (ii) above were raised on a mistaken basis. While the general comments of his Honour did not identify the offence to which the Form 1 offence related, the sentence imposed by his Honour identified that the matter on the Form 1 schedule was taken into account only in relation to Count 1 and the sentence imposed therefor. In those circumstances the ground must fail. 69 On the other hand there is some substance in the third and fourth complaints. Judge Sides' remarks that inspired the third complaint were:- "The offence on the Form 1 schedule has been considered in connection with deterrence and retribution." 70 In Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 at [42], the Chief Justice, with the concurrence of the other members of the Court, remarked that offences on a Form 1 were taken into account with a view to increasing the penalty that would otherwise be appropriate by giving greater weight to two elements, viz. the need for personal deterrence and the community's entitlement to extract retribution. It may be inferred that Judge Sides had these remarks in mind when he enunciated the passage just quoted although, as is obvious, his Honour did not, at least in what he said, differentiate between general and personal deterrence. 71 His Honour had earlier accepted that the Applicant was of good character and non-violent disposition and concluded that "the offence is an isolated aberration and that the Offender's prospects of rehabilitation are excellent". (In context, the reference to "offence" must have been intended to encompass all offences charged or an error in transcription). In these circumstances there was no occasion to increase the sentence on account of personal deterrence. 72 Nor, given the fact that the weapon the subject of the Form 1 offence was the one used in the other offences, was there any occasion to increase the sentence on account of retribution or general deterrence (even assuming the latter factor was something to which any regard could be had). 73 However, the difficulty from the Applicant's point of view with this ground of appeal is that, although his Honour "considered" and took into account the Form 1 offence, such an approach is adopted in respect of many matters that sentencing judges have to deal with. The terms do not of themselves indicate that the matters so dealt with have been given any operative weight. Accordingly, although some of the matters relied on under this ground are made out, they would not dispose me to conclude there was error or to interfere with the sentences imposed.

[25]

(vi), (vii), (viii): Error in failing to pay sufficient regard to mitigating and other subjective factors 74 Ground (vi), was, at least at one point, based upon the proposition that his Honour paid insufficient regard to the provocation by the victims. If provocation was intended to have its legal meaning, such a ground cannot be sustained. The victims did not threaten the applicant nor, if there were a rational response to it, act in a way which could have induced an ordinary person in a position of the applicant to have lost self-control in the manner suggested. 75 The submission as to provocation does not seem to use 'provocation' in the formal sense. Even if one were to look at some of the tests relating to 'self defence' it could not be said that the conduct of the applicant was a reasonable response in the circumstances as the applicant perceived them. 76 However, it seems that this ground simply restates, without reference to the intoxication, the grounds agitated in relation to intoxication. In other words, all that is being here said is that the offence in question was reactive rather than proactive. In those circumstances it is unnecessary to deal again with the issue in question. 77 The other matters that were agitated are those criteria adumbrated in s21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). I will not go through each of the criteria listed. 78 As is clear from the facts as stated, the offence was not part of a planned or organised criminal activity; the offender, while not provoked by the victims, was subject to some conduct by the victims which involved a reaction, albeit irrational. 79 The other matter to which reference should be made is the question of the absence of any prior record and the finding that the person was of good character. His Honour made those findings, as, it would seem, he was bound to do. A sentencing Judge, especially one as experienced as Sides DCJ, does not need to make mention of the particular utility of either of them in relation to the fixing of sentence and their effect on the sentences imposed. However, in this case, the only mention of either one of the criteria in relation to the actual sentence imposed, was the mention of the absence of prior convictions as going towards special circumstances. This leads to the inference that it may have been the only aspect on which it was utilised. 80 The absence of a criminal history is a mitigating factor which would ordinarily allow for the application of leniency to an offender whose conduct can, from that fact, be seen as aberrant. His Honour does mention, at a point earlier than he was discussing special circumstances, the absence of a prior record and it may be that his Honour took into account that factor as well as the good character without expressly commenting on it. However, it is not obvious from the structure of the sentence. 81 Further, the finding by Sides DCJ that the behaviour of the applicant was in this regard aberrant points directly to the proposition that it is unlikely that the applicant will re-offend. In those circumstances the mitigating factor described in s21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was relevant. No reference was made by his Honour to that factor. 82 In relation to the issues in these grounds to which the applicant refers, mention should be made of the deleterious extra curial effect of the conviction on the applicant. 83 The applicant was an apprentice locksmith regarded favourably by his TAFE teachers and by his employer. The effect of the conviction is that the applicant will no longer be able to continue with his apprenticeship as a locksmith and will necessarily lose employment. While other employment will be open to the applicant, some of which may use similar skills to those learnt, his chosen career is no longer open to him because of the indirect effect of the conviction. In order to work as a locksmith, it is necessary to have a security guard licence, which is unavailable with a criminal record such as that which the applicant now has. This is a matter which the Court ought to have taken into account in determining sentence: R v Daetz (2003) 139 A Crim R 398.

[26]

Plea of Guilty 84 The only other matter to which I will make reference that is agitated under these grounds is the issue associated with the plea of guilty. The sentencing judge referred to the plea of guilty and the timing of it. The applicant pleaded not guilty on 13 September 2005 to an indictment containing six counts, one of which was an offence under s93GA of the Crimes Act 1900 (NSW). On 7 November 2005, the date otherwise set down for trial, the applicant pleaded guilty to the four charges, one of which was the offence under s93G, in lieu of the offence under s93GA. The applicant could have pleaded guilty to the offences, which were being pressed on 7 November 2005, except the s93G offence. However, given the alteration to the charge, the earliest time in which he could have pleaded guilty to all of the offences (and only those offences) for which he was sentenced was 7 November 2005, the date on which he pleaded. 85 His Honour did not refer to the circumstances of the change of indictment. His Honour did refer to the fact that the trial had an estimate of five days and that there was utility in the pleas of guilty. His Honour said that utility "has been reflected in the sentence to be imposed". His Honour, referring to Markarian v The Queen [2005] HCA 25, stated that "it is not necessary to mathematically quantify any discount". His Honour also stated that "the extent to which penalty is mitigated is dependent upon the circumstances of each case but it must be discernible": R v Ponfield (1999) 48 NSWLR 327. 86 Markarian makes clear that sentencing is not a mathematical exercise and a sentencing judge must be allowed such flexibility as is consonant with consistency of approach and the statutory regime under which the sentencing occurs: see also Johnson v The Queen (2004) 78 ALJR 616 at [26]. But Markarian is not inconsistent with those cases that have established the principle in applying s22 of the Crimes (Sentencing Procedure) Act 1999 (NSW): R v Thomson & Houlton (2000) 49 NSWLR 383 per Spigelman CJ at [160] (with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed) that, while a failure to quantify the discount that is granted for the plea of guilty does not of itself establish error: R v Simpson (2001) 53 NSWLR 704, the purpose of s22 and the guideline judgment is to encourage transparency in decision making and the preferable course is to quantify the discount. In this case, his Honour the sentencing judge did not. The importance of transparency was referred to by this Court in R v Lawrence [2005] NSWCCA 91 in which Spigelman CJ said: "This Court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to the accused." ( Lawrence at [15]). 87 His Honour, although referring to the judgment of this court in Ponfield, supra, concerning the necessity for the discount for a plea of guilty to be discernible, nevertheless imposed a sentence which does not quantify, either expressly or by implication, the discount that has been applied for the plea of guilty. Nor does his Honour discuss where in the range of 10 to 25 percent the discount should fall, either by reference to a percentage or by reference to the relative utilitarian value of the plea. The applicant is left to guess as to the level, if any, of the discount granted. Such an approach is not consistent with the kind of transparency required by s22 and referred to in the authorities. 88 Because the discount for the plea of guilty is not expressed, it is impossible to identify with certainty the starting point from which his Honour derived the sentences he imposed. If one were to assume the 25 percent discount then the overall sentence would have a starting point of seven years and four months made up of four years and eight months for Count 1 and four years for Counts 2-4. If the discount applied was 20 percent then the overall figure would be six years and ten and a half months; if 17.5 per cent were the discount then the starting point would be six years and eight months; and if fifteen percent, then the starting point would be six years and five and a half months. If the discount applied was ten percent, then the overall starting point would have been a total sentence of six years and one and one third months, made up of three years and ten and two third months for Count 1 and three years and four months for Counts 2-4. 89 The Court is in no position to determine which, if any, of the above reflects the discount that his Honour applied. More importantly, the applicant is in no position to determine whether any discount has been applied. His Honour is an experienced sentencing judge and expressly gave the plea of guilty recognition in the fixing of the sentence, and imposed total sentences of 3 ½ and 3 years for offences characterised by him as towards the upper end of the range which carried maxima of 10 years and 7 years respectively. However, the Court is not in a position to be able to determine precisely the weight given to the plea, nor whether it was appropriate or otherwise.

[31]

(b) Retribution is an aspect of the law of sentencing. It is not a reason for a person to take the law into their own hands. 96 When the applicant was faced with a potential home invasion and the threats to his friend, in the middle of the night, the response which the Court and the law requires, if any response is required, is to call an appropriate law enforcement agency. It is the function of the New South Wales Police to deal with issues such as those which were faced by the applicant. It is necessary that significant sentences be imposed to act as a general deterrent to the kind of conduct in which the applicant engaged. 97 Against that requirement for general deterrence are the factors to which I have alluded. This is the first occasion on which the applicant has been incarcerated. Indeed, it is the first occasion on which the applicant has been charged with a criminal offence. As a person with no prior criminal record and a person who is otherwise of good character, the applicant is entitled to a degree of leniency which takes account of the fact that the behaviour is aberrant. 98 I consider that special circumstances exist warranting for each count a less than 3:1 ratio. Because of the effect of accumulation, the absence of any need for extended post-gaol supervision and the fact that I have fixed the lowest appropriate non-parole period, I do not reflect that lower ratio in the overall sentence. I take into account the offence on the Form 1 in count 1, but I do not increase the sentence because of that further offence. 99 The applicant is also entitled to have taken into account in fixing this sentence the extra curial effect that this conviction has on his future and the denial to him of his chosen career. It seems, given the evidence that has been adduced on appeal relating to sentence, that other options have opened up for him. It is also necessary to take into account his plea of guilty which ought to be at the highest level, (25%) for the s93G count and at a lower level (20%) for the others. I take account of each of the other factors to which I have referred. I have formed the view that a different sentence is warranted and I would propose the following orders: 1. Grant leave to appeal.

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