Z v R

Court of Criminal Appeal (NSW)|2015-08-21|Before: Basten JA, Wilson J, Hulme AJ, James AM

Judgment

BASTEN JA: I agree with Wilson J.
WILSON J: This is an application pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 for leave to appeal against sentences imposed by her Honour Judge Woodburne SC in the District Court at Sydney on 16 December 2014.
Her Honour sentenced the applicant in relation to two related sets of offences. The first offence in time related to the shooting of a man at Doonside on 29 November 2010 ("the shooting offence"); the second set of offences concerned three firearm offences.
The applicant pleaded not guilty in relation to the shooting offence. His trial with respect to that matter commenced on 18 March 2014. On 4 April 2014 the jury returned a verdict of not guilty of causing grievous bodily harm with intent to murder, but guilty of an alternative charge of causing grievous bodily harm with intent to do so.
The offence, which is contrary to s 33(1)(b) of the Crimes Act 1900, occurred in the context of a dispute between members of rival criminal gangs. On 29 November 2010, the applicant, at that time a member of an Outlaw Motorcycle Gang (OMCG), went to the residence of a member of another rival criminal organisation, and shot the victim, AB (a pseudonym), twice, causing him serious injury.

The Proceedings in the District Court

As noted, the applicant was convicted of the shooting offence after trial; he entered (very late) pleas of guilty to the firearms offences.
Following a number of adjournments granted to the parties the sentence proceedings were heard on 28 November 2014, with her Honour imposing sentence on 16 December 2014.

The Facts of the Offences

In relation to the shooting offence, the Crown tendered "Proposed Facts on Sentence", facts with which the applicant took no issue. Relevant to the firearms offences an Agreed Statement of Facts was tendered. The sentencing judge found the facts of the offences to be in accordance with that evidence, as follows.
During November 2010 there was animosity between two rival criminal gangs. At about 11 pm on 13 November 2010 police patrolling the Kings Cross area stopped a group of males wearing OMCG colours. Shortly after midnight AB was stopped and spoken to by Constable Hyde. AB was with a group of males. He was wearing the clothing of another gang. AB said he was there because had heard his rivals were in Kings Cross. AB was a member of his gang both before and after the time he was shot, being that group's "Sergeant".
On 29 November 2010, the day of the shooting, AB was living with his wife and children at an address in Doonside. At around 10pm that night he went out onto his porch to smoke a cigarette and send some text messages on his mobile phone. Parked at the front of his house was a truck owned or used by him.
From the porch, AB saw a person dressed in black and wearing a black balaclava walk out from behind the truck. This was the applicant. He approached AB and, producing a dark coloured handgun, said, "Hey Cuz". He walked to the top of the stairs leading to the porch and shot AB in the left thigh.
AB fell to the surface of the porch facing away from the applicant. The applicant thereupon shot him a second time, to the back of his right thigh.
The victim's wife came to the door and the applicant ran off towards a dark coloured car waiting a short distance down the road. Someone telephoned Triple 0, with the call logged at 10.13pm.
Police and an ambulance arrived. AB was taken to Westmead Hospital. He was found to have two bullet entry wounds, in each of his left and right thigh. There were associated fractures to the left femur and left lower pelvis, and two penetrating wounds to the upper rectum. A bullet was found lodged in his pelvis and another was near the left lower region of the spine. The bullets were surgically removed and a reversible colostomy procedure was undertaken.
At the scene of the shooting, police located shell casings. Later inquiries of telephone call records established that, at about the time AB was shot, the applicant was in the vicinity of a call tower at Doonside. He had made calls to fellow OMCG members before and after the shooting, but his mobile telephone was not in use for about an hour around the time of the shooting.
Between March and November 2010 the applicant had a number of discussions with an individual, named as "M". Around November 2010 the applicant told M that he could obtain prohibited firearms, and there were a number of discussions concerning firearms.
M later participated in a controlled operation, and was fitted with a listening device by police on those occasions when he met with the applicant.
On 22 November 2010 M met with the applicant and arranged to purchase a pistol from him for the sum of $6,000.
On 29 November 2010 there was another meeting about the sale of the pistol.
On 1 December 2010 the applicant again met M and sold him a .45 calibre Sig Sauer self-loading pistol. M paid the applicant $6,000 in cash, that sum having been provided to him by police as part of the controlled operation. It had a serial number but was not registered. This was the weapon that had been used to shoot AB.
After obtaining the pistol from the applicant M delivered it to police. The firearm was subsequently examined by ballistics experts and matched to the two projectiles that had been removed from AB's body. M was not a person authorised to have possession of a firearm.
In the following week M and the applicant had a number of discussions about M buying another firearm. The applicant offered to sell M an 'uzi' sub-machine pistol for $27,000.
Each of the meetings between M and the applicant was electronically recorded pursuant to a warrant permitting the covert recordings to be made. One exchange recorded between the applicant ("A") and M was: "A: Notorious ran into one of our coffee, one of our coffee shops M: When A: Coffee, at Mount Druitt last night M: They ran in A: We got, we got the sergeant. It was, it was all on the news. We shot the sergeant.... Then we got it, until they went to the coffee shop next to the tattoo shop....who shot... to the coffee shop with baseball bats. M: The Doonside one? Yeah? A:... M: Their sergeant? Fuck! And then they ran into your shop yesterday? A: With baseball bats, the useless cunts. They just bashed the old bloke, some worker, old bloke, poor cunt, bashed the old cunt for no reason. M: That's fuckin slack A: That's what... M: But brother this whole thing like why? Over money? Over power? A: For the agg bro. Cause of that."
Newspaper reports from the time coincide with what the applicant told M.
On 7 December 2010 M again met with the applicant. That meeting was also lawfully recorded. There was a further conversation about the shooting of the Sergeant of the rival gang, during which the applicant made a number of admissions, including that he was a member of the Milperra/Bankstown Chapter of an OMCG, that the Sergeant of the rival gang had been shot in the leg, and that a shop had been burnt down in retaliation.
At the conclusion of the conversation the following exchange was recorded: "M: Okay, hey brother. I died laughing about the guy shot in the balls. Who there.. A: He got lucky (whispering) M: Who ... you. A: He got he got lucky and dived behind, he dived behind the fucking wall, like he... had the wall but didn't go through M: So what brother you got a shot at him and then what he jumped A: No oh he.... Dived behind the door... this is the door, his leg was left outside so I sprayed it [..]."
The sale of the sub machine gun by the applicant occurred on 7 December 2010. M was provided with $27,000 cash as the purchase price of the firearm. He was fitted with a listening device. Later that day the applicant went to M's premises. He was carrying a purpose made silver case that contained a 9mm sub-machine pistol, 2 magazines with a capacity of 21 rounds, 50 rounds of 9mm ammunition, a silencer, and a fore end, that being an additional screw-in handle that allowed for two handled firing. The applicant assured M that the gun was "rapid, very rapid fire".
He told M not to get caught with the firearm, warning him: "10 years with the silencer […] For your sake bro, cause I love you I'll tell you that".
The firearm was not registered.
A ballistics expert who examined the firearm considered that it appeared to have been home made. It was in working order and capable of propelling projectiles in rapid succession with one depression of the trigger. The firearm is a prohibited pistol, regarded as a sub-machine pistol.
The third firearms offence related to the applicant's possession of a revolver.
On 18 January 2011 the applicant met with M near Rhodes. He had a discussion with him, and then walked alone towards his car. He was arrested. On searching his car police found an object wrapped in blue fabric under the front passenger seat. It contained a fully loaded shortened .357 Magnum Uberti revolving cylinder fire rifle. The butt stock had been removed and replaced with a pistol type grip. The weapon was readily able to be concealed.
The applicant declined to participate in a record of interview.
On that same day a search warrant was executed at the applicant's home in Kellyville and a number of items were located, including a quantity of black balaclavas, some black rubber gloves, items of OMCG branded clothing, and cash from the sale of the firearms to M.

The Seriousness of the Offences

Her Honour assessed the shooting offence to be one with a very high level of objective criminality, falling towards the upper range of objective seriousness for an offence of its type.
Significantly, the sentencing judge regarded the fact that the offence was committed in the context of organised criminal activity, with the victim targeted by virtue of his membership of a rival gang, as heightening the gravity of the applicant's crime.
There had been a degree of planning involved, with the victim's home address identified, a firearm and ammunition obtained to carry out the attack, a balaclava and gloves used to disguise the applicant's identity, and a driver utilised to speed the applicant's get-away.
A weapon was used and the victim was shot twice, with the second shot fired after the first had already brought him injured to the ground. The sentencing judge noted the high degree of violence involved, and observed that the use of the firearm involved a grave risk of serious injury or death.
Her Honour referred to the nature and extent of the injuries to AB, and to the extensive medical treatment required, assessing the injuries as of a high level.
The offence had been committed in a residential street, on the front verandah of the victim's home, with his wife and two young children inside the house. Her Honour referred to the risk of injury to persons other than the intended victim, and to the capacity of a shooting in a public street such as this to undermine the sense of safety and security citizens are entitled to feel inside their homes.
As to the firearms offences, her Honour noted that the sales of the two firearms were planned and considered acts designed to relieve the offender of the weapons and enrich him or his gang. Although the offender had made it known to M that he was able to supply the weapons and was well aware that M was not acquiring them as a mere curiosity without intending that they be used, her Honour concluded that the fact that the weapons were not disseminated (because of police intervention) ameliorated the gravity of the crimes.
She regarded the sale of the pistol as falling within the mid-range of objective seriousness. The sale had been for the not insignificant sum of $6,000; the gun was not loaded (although the applicant had said he could supply ammunition for it); it had a serial number, although it was not registered. The applicant sold the firearm without regard for what use it might ultimately be put to.
As to the second s 51(1A) offence, in relation to the sub-machine pistol, the sentencing judge concluded that it fell above the mid-range of seriousness for an offence of its type. She noted that, although the weapon appeared home-made, it was in working order and had been sold with magazines, ammunition, a silencer, and a fore end handle. Whilst the sale of the weapon was an element of the offence, her Honour referred to the large amount of money involved, it being a commercial transaction of some significance.
The possession offence was also assessed as falling above the mid-range of seriousness for an offence of its type. Her Honour noted that the weapon was shortened and readily concealed, it was found unsecured in a motor vehicle where it was ready to hand. The gun was loaded and in working order and its presence in a car in a public street posed a risk to public safety. The context of the applicant's possession of the weapon was relevant, that being that the applicant was a member of a criminal gang who had demonstrated his willingness to use a firearm for criminal ends.

The Applicant's Subjective Case and Other Relevant Considerations

The applicant did not give evidence on sentence, although he had touched on some personal matters in his evidence at trial.
A psychiatric report from Dr Olav Nielssen was tendered to the sentencing court by the applicant, as were a number of character testimonials.
The applicant was aged 23 at the time of the offences and 27 when he was sentenced. He was born in Northern Iran and began his schooling in that country. A promising start to his education was disrupted by revolution and war, and the applicant and his family were eventually forced to flee their homeland. The family went to Turkey, thence New Zealand (when the applicant was aged 15 years) and, finally, Australia.
Subsequently the applicant undertook some study through TAFE and worked as a security guard and, after his security license was cancelled, in the construction industry.
At age 21 the applicant was before the courts for offences of affray and intimidating a police officer. At 22 he was convicted of assault. The facts of those offences were before the Court and each was a serious infringement involving considerable violence or the threat of it.
At the time of the current offences the applicant was still serving sentences related to those offences, being at liberty subject to three separate good behaviour bonds. Consistent with principle, the sentencing judge noted that the commission of the offences by the applicant in breach of conditional liberty was a matter of serious aggravation.
Although the applicant does not drink alcohol he reported to Dr Nielssen that he has used both methylamphetamine and anabolic steroids in the past. His use of the former led to a brief admission to a psychiatric ward due to a drug induced psychosis. Dr Nielssen concluded that the applicant had a psychotic illness in remission. There were, however, no residual signs of any chronic mental illness and no ongoing treatment was indicated. There was no causal link between the illness and the offences.
It was the applicant's use of illicit drugs that led to his association with bikie gangs. The applicant reported that he had joined an OMCG having been attracted to the money, drugs and camaraderie made available to him by reason of his membership. He told Dr Nielssen that he had been able to leave the gang without adverse consequences.
The applicant was spoken of highly by a former employer, and by his partner. He retained the support of his family and partner.
Although the applicant maintained that it had not been him who shot AB, the sentencing judge was prepared to allow the applicant the benefit of a conclusion that he accepted responsibility for that and the firearms offences, and regretted the consequences of his actions.
Her Honour found nothing in the evidence that lessened the applicant's moral culpability for these crimes, and gave effect to principles of general deterrence and, to a degree, specific deterrence.
She found that the applicant had taken steps towards rehabilitation, the future of which was largely dependent upon him.
The sentencing court also took into account those matters that enlivened the operation of s 23 of the CSP Act, and the late pleas of guilty to the firearms offences.

The Application to this Court

If granted leave, the applicant seeks to advance six grounds: 1. Her Honour erred in finding that the offence committed contrary to s 33 Crimes Act 1900 was aggravated by the fact that the conduct resulted in a grave risk of death to the victim; 2. Her Honour erred in finding that the offence committed contrary to s 33 Crimes Act 1900 was aggravated by the fact that the offence was committed without regard for public safety; 3. In determining the objective seriousness of the offence committed contrary to s 7(1) Firearms Act 1996 her Honour erred in taking into account the applicant's involvement in the OMCG; 4. Her Honour erred in finding that the offences were aggravated by the fact that the applicant had previously been convicted of serious, personal violence offences; 5. The sentence imposed upon the applicant in respect of the offence contrary to s 33 Crimes Act 1900 was manifestly excessive; and 6. The overall sentence was manifestly excessive.

Ground 1: Her Honour erred in finding that the offence committed contrary to s 33 Crimes Act 1900 was aggravated by the fact that the conduct resulted in a grave risk of death to the victim

As part of her assessment of the objective gravity of the crime of causing grievous bodily harm to AB with intent to do him grievous bodily harm, her Honour found at p 9 of her sentence judgment ("ROS"), that: "The use of the firearm involved a grave risk of death to [AB], even if, as the jury found, the offender did not intend to murder [AB]. The medical evidence established that had he not been treated, his injuries would have caused serious complications or death."
Of that conclusion the applicant confidently asserts, at [6] of his written submissions ("AWS"): "This reference is, of course, a reference to the aggravating feature set out in s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999."
Section 21A(2)(ib) of the CSP Act provides for that following aggravating feature can be taken into account on sentence: "the offence involved a grave risk of death to another person or persons."
Having read her Honour's remarks, and considered the two sentences of which the applicant complains in the context of the whole, I do not share his confidence that the sentencing judge was, "of course" purporting to make a finding pursuant to s 21A(2)(ib) of the CSP Act that there was a grave risk of death, such that the gravity of the offence was aggravated.
What the sentencing judge was plainly doing at that point in her judgment was making an assessment of the seriousness of the offence, as she was required to do prior to determining the sentence to be imposed.
She prefaced this and other relevant findings by noting that she was obliged to determine the objective seriousness of the offence. Her Honour went on to refer to the fact that the crime was planned, that it occurred in the context of organised criminal activity, within the curtilage of a suburban home, and that a weapon was used.
The impugned sentences followed immediately after the Court's comments concerning those matters.
That her Honour was doing no more than considering those features of the offence which were relevant to its gravity is clear from what was said, and the context in which it was said. The reference to the fact that there was a grave risk of death is simply a statement of fact that could likely be said of many such offences where a firearm was used and more than one shot was fired directly into a victim's body. It did not amount to a conclusion that a statutory feature of aggravation was made out beyond reasonable doubt.
Indeed, the second of the two sentences relied upon by the applicant as pointing to error establishes clearly that no such error occurred. In the second sentence her Honour noted that, without the benefit of timely medical treatment, there was a grave risk of "serious complications or death". That was very much a qualified observation. It demonstrated that, whilst the applicant's crime was a very dangerous one, and it involved very serious risk to the victim, her Honour was not thereby concluding that the statutory feature of aggravation had been established.
The sentencing judge nowhere referred to the statutory scheme pursuant to s 21A of the CSP Act in relation to this aspect of the matter. She did not use the word "aggravation" or make any reference to what had to be found relevant to s 21A(2)(ib) for that particular feature of aggravation to be established. In the absence of references of that kind, and in circumstances where her Honour referred equally to the risk of death and of serious medical complications, I am unable to conclude that the reference was necessarily to s 21A(2)(ib), as the applicant complains.
Even had that been the inevitable meaning of the sentencing judge's comment, it would not in any event be erroneous. The act of discharging a firearm directly at another person must be an act which carries a grave risk of death, even where there is no actual injury, and certainly regardless of the degree of injury inflicted or the availability of appropriate medical treatment. It is the act of aiming a loaded gun at another person, and firing the weapon at the person's body which carries the risk, without more.
In Colomer v R [2014] NSWCCA 51 at [38] - [40], it was held that there was a grave risk of death in the act of pointing a firearm at another person when the gun was "cocked", with a bullet in the chamber, even where the firearm was not actually discharged.
The applicant fired a high calibre pistol directly at the victim at relatively close range. Having hit his target, the applicant discharged a second shot directly into the body of his victim. On that evidence alone, the sentencing judge was entitled to conclude that there was a grave risk of death and, had she done so, there would have been no error.
This ground is misconceived and I would not grant leave to argue it.

Ground 2: Her Honour erred in finding that the offence committed contrary to s 33 Crimes Act 1900 was aggravated by the fact that the offence was committed without regard for public safety

Ground 2 involves a similar assertion about a comment made by the sentencing judge during the course of assessing the objective gravity of the offence. The applicant contends that, although she did not say so, the sentencing judge must have made a finding that a particular statutory feature of aggravation had been established on the evidence. The relevant provision is s 21A(2)(i) of the Act. This complaint relies upon a similar misreading of the process in which her Honour was engaged.
The applicant asserts error by reference to the following two paragraphs from the sentence judgment: "The offender went to [AB]'s porch and it was there he discharged the firearm. That is not to say, however, there was not therefore any risk to anybody else…[AB]'s wife came to the door when she heard the shots and there were other residents who were roused by the commotion. The offender fled with his weapon to the waiting car. Whilst not exhibiting a high level of terror, risk or injury as in Razzak, it must be acknowledged that carrying a loaded gun in a suburban street brings with it an unacceptable level of risk to the residents of such street."
Making the same assertion as was made relevant to ground 1, the accused submits that: "It is submitted that the discussion of "risk" to the victim's wife and the residents must be a reference to the aggravating factor set out in s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999, namely, that "the offence was committed without regard for public safety."
It is contended that, in making the observations she did, the sentencing judge was in fact making a finding that the offence was committed without regard to public safety, in circumstances where the evidence did not permit such a finding to be made.
I am unable to draw the same conclusion that her Honour's comments "must" be a conclusion pursuant to s 21A(2)(i) of the Act, that the applicant's crime was an offence committed without regard for public safety.
Context is again of relevance. The sentencing judge's remarks were made in the context of her assessment of the objective gravity of the offence. In that context, her Honour had regard to the location at which the offence occurred, and its potential dangerousness. There should be nothing troubling about a conclusion that discharging a firearm twice in the immediate vicinity of a residential building in which three people other than the intended victim were present, and at no great distance from a public street in a residential area, was an act that paid no regard to the safety of any person who might have been in the vicinity.
Cognisance of those relevant factual features is to be distinguished from a conclusion beyond reasonable doubt that a particular statutory feature referred to in s 21A(2) of the Act as a feature aggravating the commission of a crime has been established. The two should not be conflated in the absence of any more specific finding by the sentencing judge than is present in her Honour's remarks.
The applicant is seeking to read into the impugned passage something which is simply not there.
Even had her Honour intended by her remarks in this regard, to make a finding that the particular feature of statutory aggravation had been made out, I would not regard her as thereby falling into error.
The applicant submits that, in that the offence was committed within the curtilage of a private residence (something specifically noted by the sentencing judge at ROS 8), at a late hour of the evening, the evidence did not support a conclusion that the offence was committed without regard for public safety.
The applicant relies upon R v Tuala [2015] NSWCCA 8 at [85] in support of his contention. There, Simpson J (as she then was), considered the application of s 21A(2)(i) of the Act to the offence then under consideration by this Court. With the agreement of Ward JA and me, her Honour noted: "The shooting offences were committed in a public place, in the vicinity of a TAFE college, in daylight. I would therefore accept that they were indeed committed without regard for public safety. The question that arises in respect of the Crown's proposition (vii) is not whether the offences were aggravated by that circumstance, but whether Robison DCJ failed to take it into account."
I do not take her Honour's comments in this paragraph of Tuala as intended to lay down a rigid rule that only an offence committed in a public place in daylight hours will be one which may be taken to have been committed without regard for public safety. Those were relevant features in that particular matter, but each case must turn on its own facts.
It could not be said, for example, that a shooting that occurred in the garden of a private residence at midnight could not be one committed without regard for public safety, if there was a well-attended party being held at that location at the time, with many people milling about in the vicinity of the shooting. Whether the commission of a particular offence demonstrates a disregard for public safety will depend upon the particular circumstances.
Here, the applicant was carrying a loaded firearm in a public street and on private property in a residential area. There were persons other than AB in the area, notably his wife and children. The applicant's conduct was, in those circumstances, clearly without regard for the safety of other persons who might have been in the vicinity, and whose safety was jeopardised by the applicant's conduct.
No arguable error has been established and I would not grant leave to advance this proposed ground.

Ground 3: In determining the objective seriousness of the offence committed contrary to s 7(1) Firearms Act 1996 her Honour erred in taking into account the applicant's involvement in the OMCG

The applicant's complaint in support of this ground is that the sentencing judge erroneously concluded that the purpose of the possession of the firearm by the applicant was to advance the cause of the gang with which he was associated by resort to a firearm. The applicant contends that such is the only possible meaning of the following comment from the sentence judgment, at ROS 20 - 21: "The learned Crown Prosecutor submitted, and I accept, that it is relevant to take into account the offender's involvement at that time in the [OMCG]. The offender has demonstrated in his preceding activities, that is, the offence of cause grievous bodily harm with intent to cause grievous bodily harm, his willingness to progress the cause of the [OMCG] by resort to a firearm. This is not to punish the offender for the criminal tendency or to punish him for some intended misuse. Rather, it is due recognition of the context in which the offence occurred."
Specifically disavowing the importance and meaning of the last two sentences of that passage, the applicant submits that, "notwithstanding her Honour's comments", the line of reasoning employed was such that the sentencing judge was doubly punishing the applicant for a tendency or perceived tendency to misuse a firearm.
I am not as willing as the applicant is to simply disregard part of her Honour's relevant comments when determining the significance of the impugned passage. In particular, the last two sentences must inform her Honour's purpose and meaning in making the comments; it would be quite wrong to simply ignore them because, presumably, they undermine the applicant's argument.
The sentencing judge specifically noted that she had regard to the applicant's willingness to act in a way supportive of the activities of an OMCG, and to do so by utilising a firearm, as "due recognition of the context in which the offence occurred". That was, in my opinion, an entirely proper way to approach the matter.
The context of the applicant's possession of a loaded and unsecured firearm was a relevant consideration that informed the exercise of the sentencing discretion. The offence did not fall to be assessed in a factual vacuum, as the applicant submitted, divorced from all else that had gone before. It was appropriately considered and assessed in the overall context in which it was committed, that being the applicant's membership of, and participation in a criminal gang, and his possession and use of firearms as a means to advance the perceived interests of that gang.
I would regard it as erroneous had the sentencing judge approached the matter as the applicant submitted was appropriate, by limiting the relevant factual background to the discovery of the firearm wrapped in fabric under a seat in the applicant's car (AWS [15]).
Her Honour properly considered the offence in its broader context. There is no error in that approach.
I would not grant leave to argue this ground.

Ground 4: Her Honour erred in finding that the offences were aggravated by the fact that the applicant had previously been convicted of serious, personal violence offences

As with grounds 1, 2, and 3, the applicant has extracted a discrete portion of the sentencing judge's remarks, sought to sever it from the context in which it was made, and relied upon a sentence divorced from the whole to argue that her Honour "obviously" had in mind (AWS [17]) a feature of statutory aggravation (s 21A(2)(d) of the Act), wrongly applied.
The remarks relied upon are as follows, "As already mentioned, the offender was the subject to each of these bonds at the time of the commission of the four offences that bring him before the Court. This is a matter of aggravation. It might be noted that the offences of affray (s. 93C Crimes Act) and intimidate police officer while in execution of officer's duty, although no actual bodily harm is occasioned to the officer (s 60(1) Crimes Act) are defined as "serious personal violence offences" even though they were subject to a two year jurisdictional limit in the Local Court."
The critical portion of the paragraph is the first two sentences, in which the sentencing judge referred to the breach of three good behaviour bonds by the applicant as a matter of aggravation. The applicant concedes that there can be no error in those sentences, but goes on to assert that the balance of the paragraph is "obviously" a reference to s 21A(2)(d) of the CSP Act, and it should thereby be inferred that the sentencing judge gave undue weight to the applicant's prior criminal history.
Section 21A(2)(d) provides for the following aggravating factor to be taken into account in determining the appropriate sentence: "The offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences)."
The facts of the applicant's earlier crimes of violence were tendered to the sentencing court without objection. What those facts reveal are the commission by the applicant of crimes which, for offences of their nature, were very violent or threatened considerable violence. Having been placed on three separate good behaviour bonds for those offences, the applicant breached the conditional liberty afforded him in the most serious of ways, by committing four very grave offences, one of them an offence involving a very high level of violence, with the remainder being serious firearms offences.
It was open to the sentencing judge in those circumstances to give very considerable weight to the applicant's history of offending conduct, and his subsequent disregard for the orders of the courts which directed him to be of good behaviour.
Acknowledging that the applicant's breach of conditional liberty was an aggravating feature to which her Honour was entitled to have regard, the applicant nevertheless complains that the sentencing judge was in error in referring to his previous convictions as offences of serious personal violence, and must by that reference have been drawing a conclusion adverse to the applicant of the presence of the aggravating feature listed by s 21A(2)(d).
This contention is again made in circumstances where the sentencing judge made no reference to s 21A(2)(d), and was considering the applicant's criminal history in a context different to that which would attach to a discussion of the presence of features of statutory aggravation.
Whilst a "personal violence offence" has a particular statutory meaning pursuant to s 4(a) of the Crimes (Domestic and Personal Violence) Act 2007 that does not encompass those offences of which the applicant had been previously convicted, the phrase also has an ordinary meaning and usage which predates the statutory scheme. There is for example, an entire chapter (chapter 50) in the Sentencing Bench Book (Judicial Commission of New South Wales) that deals with personal violence offences. That chapter includes offences contrary to s 60 of the Crimes Act 1900.
Although her Honour's exact meaning is unclear to me, what is clear is that the impugned sentence was something of an aside ("it might be noted that"), and was not a reference to a finding that a statutory feature of aggravation had been made out. The sentencing judge was doing no more than observing that the applicant's criminal history was for serious offences of personal violence, an observation that was correct.
I see no error, and certainly no error that has wrongly aggravated the penalty imposed upon the applicant.
I would not grant leave to raise this ground.

Ground 5: The sentence imposed upon the applicant in respect of the offence contrary to s 33 Crimes Act 1900 was manifestly excessive

The applicant contends that, having regard to the discount of 50% the notional "starting point" for the sentence was manifestly excessive, and thus the sentence imposed must also be manifestly excessive.
In support of his complaint of manifest excess, the applicant provided the Court with sentencing statistics published by the Judicial Commission relevant to offences contrary to s 33 of the Crimes Act 1900. In reliance upon those statistics, the applicant submitted that the "starting point" of the sentence imposed by her Honour was "very much at the top end of sentences imposed" (AWS [22]).
Such an argument says nothing about whether a particular sentence might be regarded as manifestly excessive (or manifestly inadequate). It is an argument which has been frequently rejected by this Court, and yet it continues to be advanced. In Ma and Pham v R [2007] NSWCCA 240, Hulme J, with the concurrence of McClellan CJ at CL and Hoeben J (as their Honours then, respectively, were) said, at [91], "Subliminal in the reference to the statistics and the observation that the sentences here fall into the highest end of the range is the proposition that that is indicative of error. The proposition must be rejected. As this Court has said on many occasions, the range extends to the maximum penalty set by Parliament and it is against that that an offender's conduct must primarily be judged. Certainly, the statistics may at times inspire further reflection on the sentence in a particular case and perhaps give some limited guidance but, of themselves, they do not demonstrate error. Particularly is this so because, within each category, they provide no details of the cases reflected in them."
See also a similar comment from Hulme J in Hampton v R [2010] NSWCCA 278; (2010) 208 A Crim R 478, at [55] - [56].
The extent of the range with respect to the applicant's crime is a sentence of imprisonment for 25 years. The other statutory guidepost was the standard non-parole period ("SNPP") of 7 years specified against this offence, although it was of lesser significance in the context of this case than was the maximum penalty, as was discussed in R v Mitchell & Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94, at [37], "Where a particular case falls well above the mid-range of offending, the standard non-parole period will have less significance as a guidepost and more attention should be directed to the maximum penalty in determining the appropriate sentence. This must be so otherwise an offence falling within the worst category of case, and so notionally attracting the maximum penalty, would be drawn away from that point by the standard non-parole period and a court could never impose the maximum penalty. This does not mean that the standard non-parole period loses all relevance and it may still have work to do as a guide to determining the non-parole period. So, for example, with an offence of objective seriousness well above mid-range it may be unlikely that, even after a discount for the plea of guilty, or a consideration of the subjective circumstances of the offender or a finding of special circumstances the result would be a non-parole of, or below, the standard non-parole period prescribed."
Her Honour's assessment of the particular offence, within the range of such matters, was that it fell towards the higher end of that spectrum. For my part, I see no error in her Honour's conclusion in that regard.
This was an extremely grave offence. The applicant went, disguised and armed with a loaded, unregistered firearm to a residential home in which a family with young children lived, that home being located in a residential street where doubtless other families lived. The applicant had planned to commit the crime which followed. Two shots were fired directly into the body of the victim, with the second shot discharged after the victim had already fallen injured to the verandah. The crime was committed in furtherance of the objectives of a criminal gang. The injuries occasioned to the victim were serious. It is only the fact that the injuries were not as serious as some encompassed by the phrase grievous bodily harm, that prevented this matter from falling within the worst category for such a crime. There were wider consequences, including the disquiet and fear that such a crime, committed in a suburban street, would inevitably engender in the local community.
Particularly bearing in mind the legislative guideposts relevant to an offence contrary to s 33 of the Crimes Act 1900, and noting the very grave nature of this offence, I am not persuaded that there is any error in the sentence imposed.
Leave to argue this ground should be refused.

Ground 6: The overall sentence was manifestly excessive

The final ground of appeal sought to be advanced by the applicant is that the overall sentence is manifestly excessive. The total effective sentence was a non-parole period of 7 years and 9 months imprisonment, with an additional term of 4 years and 3 months. The overall head sentence was one of 12 years imprisonment.
Her Honour was obliged to sentence the applicant for four very serious crimes, each of which had been committed in the context, and against the background, of the applicant's participation in a criminal gang, whilst subject to conditional liberty. Each of the four offences was objectively grave. Each was one which required, in particular, principles of general deterrence to be given prominence.
Others must be deterred from committing offences of serious violence utilising a firearm, and especially when such crimes occur within the course of gang activity. Equally, firearms offences are an increasing threat to the community, and the possession and sale of such weapons fuels the commission of crimes involving guns. General deterrence is of great importance in deterring such crime.
It was necessary for the sentencing court to impose a sentence which met the objectives set out in s 3A of the CSP Act, and complied with all relevant principles of sentencing. In her detailed and careful judgment, her Honour set out all relevant features of the matter, and noted applicable law and principle. She did not allow extraneous or irrelevant matters to guide or affect her decision, or fail to consider some material matter, or mistake the facts: House v The King [1936] HCA 40; (1936) 55 CLR 499 at [504]-[505].
The party advancing a claim of manifest excess, or manifest inadequacy, must establish that the sentence was unreasonable or unfair: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [325]. That burden is to be discharged in an environment where there is no "correct" sentence.
As was noted in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [27]: "Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies."
These words are not to be regarded as hollow rhetoric to be piously intoned and then carefully ignored. First instance judges are to be allowed the flexibility the High Court referred to in Markarian because it is the sentencing judge who has had the best and most complete opportunity to consider the evidence (in this case encompassing evidence given at trial by witnesses including the applicant), to apply the relevant principles to the evidence, and to arrive at a sentence which is intuitively reached, and which is based in part on the experience of the court.
An approach of isolating individual sentences from the context of a lengthy sentence judgment, and then seeking to read into the extracted words a meaning which is not explicitly there, with the aim of discovering error is to be rejected. Nor is a sentence to be regarded as manifestly excessive or inadequate because this Court might have imposed a different sentence: Markarian at [26] - [28].
Nothing in her Honour's careful judgment bespeaks error requiring the intervention of this Court.
The broad sentencing discretion that reposes in the sentencing court did not miscarry. The individual and the overall sentences imposed were well within the proper exercise of that discretion. Indeed, only the assistance given by the applicant to the authorities could justify the leniency implicit in the sentences imposed.
Leave to appeal should be refused.

Proposed Orders

I propose that leave to appeal is refused.
R S HULME AJ: I have had the advantage of reading the judgment of Wilson J. I agree with her Honour that the appeal should fail.

Ground 1

While I am not prepared to conclude that every use of a gun involves a grave risk of death to a victim, the injuries suffered by the victim in this case - injuries extending significantly beyond the thighs apparently aimed at - demonstrate firstly that the weapon was not fired with such care and precision as to avoid that risk and secondly, in fact, there was a grave risk of death - a consequence only avoided by the medical treatment which the victim in fact received.
I reach this conclusion without deciding whether or not the sentencing judge was intending to reflect the terms of s 21A of the Crimes (Sentencing Procedure) Act. Certainly there are in her Honour's series of references to "planned and organised criminal activity", that the offender "used a weapon", that its use "involved a high degree of violence", and was "within the curtilage of [the victim's] home, "and involved a grave risk of death" echoes of s 21A. Her Honour's reference to risk to the victim's wife and "unacceptable level of risk to the residents of" the street also suggests her Honour had in mind the provisions of s 21A (2)(i) "the offence was committed without regard for public safety". However even without the terms of s 21A these matters would be relevant and, given the other conclusions at which I have arrived, I do not find it necessary to decide whether her Honour was directing attention specifically to the dictates of the section.
Ground 1 fails.

Ground 2

In support of this ground, reliance was placed on remarks of her Honour: "The offender went to [the victim's] porch and it was there he discharged the firearm. That is not to say, however, there was not therefore any risk to any one else… [The victim's] wife came to the door when she heard the shots and there were other residents who were roused by the commotion. The offender fled with his weapon to the waiting car. Whilst not exhibiting a high level of terror, risk or injury as in "Razzak", it must be acknowledged that carrying a loaded gun in a suburban street brings with it an unacceptable level of risk to the residents of such street."
Given the deliberateness of the actions of the Applicant in, as the Facts on Sentence recount, walking within sight of the victim to the top of the stairs leading to the porch and, as may be inferred, deliberately choosing the victim's thighs as the place to shoot, I doubt whether there was more than slight risk to anyone other than the victim.
Providing things went according to plan, there was minimal risk to persons other than the victim. However, things do not always go according to plan. From time to time persons do react and interfere with the actions of persons armed with weapons. Offenders generally seek to avoid being caught and in the commonly emotion charged atmosphere of serious offending and escape, damaging events do happen.
While as I have said I would not regard any risk to persons other than the victim as more than slight, I do not regard her Honour as wrong when she concluded that there was a risk to the victim's wife. However, neither that finding nor that of an "unacceptable level of risk to the residents" amounts to a finding that, in terms of the ground, the offence was "committed without regard to public safety."
Ground 2 also fails.

Grounds 3, 4, 5 and 6

I agree with the reasons of Wilson J.

Generally

I would add the following.
The discount allowed to the Applicant for the grievous bodily harm offence was unduly generous. In addition, there was a significant degree of concurrency in the sentences imposed.
There has been no Crown appeal against any of the sentences but even were I inclined to uphold one of the grounds of appeal, I would have been disposed to deprive the Applicant of the benefits referred to in the immediately preceding paragraph by way of offsetting any benefit from such upholding. Actions such as those the subject of the charges against the Applicant are far too frequent in the community and the courts need to impose penalties which in fact operate as a real deterrent.

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At a glance

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Judgment (18 paragraphs)

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