AB v Regina - [2007] NSWCCA 129

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: AB v Regina [2007] NSWCCA 129
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/861

HEARING DATE(S): 10 May 2007

JUDGMENT DATE: 10 May 2007

PARTIES:
AB v Regina

JUDGMENT OF: Campbell JA James J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3119

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 19/12/06

COUNSEL:
(A) C Smith
(C) W Dawe QC

SOLICITORS:
(A) C Tawagi (LAC)
(C) S Kavanagh

CATCHWORDS:
Discharging firearm in public place and affray - co-offenders - serious offences - moderate sentences imposed on juvenile offender - no marked disparity in sentences - difficulities in applying parity principles where co-offenders dealt with on significantly different charges.

LEGISLATION CITED:
Crimes Act 1900 (93G(1) & s 93C(1)

CASES CITED:
Postiglione v TheQueen (1996-1997) 189 CLR 295
R v Watson 25/2/1992 CCA

DECISION:
Leave to appeal against sentence granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/861

CAMPBELL JA
JAMES J
SMART AJ

Thursday, 10 May 2007

ABv Regina
JUDGMENT

CAMPBELL JA: I will ask Justice Smart to deliver the first judgment.
SMART AJ: AB seeks leave to appeal against a sentence of imprisonment comprising a non-parole period of six months commencing on 19 December 2006 and balance of term of 12 months expiring on 18 June 2008 for the offence of discharging a firearm (a rifle) in a public place and against a further concurrent sentence of imprisonment for a fixed term of six months commencing on 19 December 2006 for the offence of affray.
The maximum penalty for each offence is 10 years imprisonment (see section 93G(1)(b) and section 93C(1) of the Crimes Act 1900).
At the date of the offences, namely 3 July 2005, AB was aged 16 years and six months being born on 28 December 1988.
There was an agreed statement of facts which sets out the background to these offences. It is not necessary to rehearse it in detail. Suffice it to say that there was a fight involving the victim and certain other males. The co-offender Wilson and a man called Phalome made a number of telephone calls to a number of men including AB and the co-offender Pou. AB responded to that call. Phalome collected AB. Pou was also in that vehicle.
Omitting the intermediate details, groups of males had gathered in Guise Avenue, Casula. The victim drove to that street on route to his house. He was confronted in that street. AB had found a rifle and some ammunition in the vehicle in which he was a passenger. He loaded the rifle. AB had secreted the loaded rifle in his pants. He had gathered with the other males in Guise Avenue. AB, standing about 10 to 15 metres away from the victim on the roadway, discharged the gun to the right of the victim in the direction of the houses in Randwick Close. AB then pointed the gun in the direction of the victim who took evasive action.
A number of other males, one carrying a baseball bat, a couple armed with knives and Pou holding a knife, converged on the victim who tried to start his car and engage the gears. The co-offender Pou repeatedly stabbed the victim in the back and arm inflicting three discrete wounds. The victim drove his car for about 20 metres before collapsing and slumping over the wheel. He required and received emergency attention. He was hospitalised, the wounds were explored and closed in theatre and he was discharged the next day.
AB complains that the judge imposed, effectively, the same sentences on him and Pou. Both Pou and AB received the same length of sentence on the charge of affray, namely a fixed term of six months. Pou was not charged with discharging a firearm, but on the charge of wounding in company Pou received a sentence comprising a nonparole period of six months and a balance of term of 12 months. The sentences were concurrent.
AB stated that he used the firearm in an attempt to scare the victim, but conceded that this may have exacerbated the situation.
The judge was satisfied that AB was somewhat contrite. AB has never been in custody before and, except for the offence of driving a vehicle on the road never being licensed, he had no previous convictions. The judge assessed AB’s prospect of rehabilitation as reasonable. The judge allowed a discount for his guilty plea “towards the top of the range available”.
The judge made these further observations:

(a) AB’s prospects of rehabilitation would be advanced by an extended
period of supervision and that amounted to special circumstances.

(b) General deterrence was not appropriate by reason of AB’s youth.
(This is too widely stated.)

(c)Personal deterrence was a minor factor.

The judge directed that the whole of each sentence of AB be served in the Juvenile Justice System.
A former employer described AB as an honest and diligent worker who had always been respectful of other employees. AB enjoyed the support of his family.
The judge dealt with both AB and Pou at the same time.
In his discussions with the legal representatives, the judge observed that on one view he was not concerned with parity in the present case and that the view was open that the use of a firearm was more serious than a knife.
In his remarks on sentence in AB’s case and Pou’s case, the judge did not mention the question of parity directly or by implication, although we have been assured by counsel for AB that the matter was raised before the judge.
While both AB and Pou were charged with affray and graver charges, the latter differed with Pou being charged with wounding in company and AB with discharging a firearm in a public place. Both of these latter offences have the same maximum penalty of 10 years imprisonment. All the offences occurred during the same incident and involved the same victim. The discharge of a firearm in a public place has the capacity to affect many people.
In Postiglione v The Queen (1996-1997) 189 CLR 295 at 301 to 302, Dawson and Gaudron JJ said:
“Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”
The emphasis upon due proportion is important. These Justices took the view that a proper comparison of the sentences involves a consideration of all components. At 343 Kirby J referred to the outcome of the sentencing of Messrs Savas and Postiglione as clearly offensive to the sense of justice. They were the majority Justices.
From the judgments in Postiglione and Lowe v The Queen (1984) 154 CLR 606, it can be concluded that any discrepancy or lack of due proportion must be marked and such as gives rise to a justifiable sense of grievance.
Questions of parity or due proportion aside, it was within the sound exercise of the sentencing discretion to impose a sentence of full-time imprisonment for the offences committed by AB. He took hold of the rifle in the vehicle in which he was travelling, loaded the rifle with ammunition, secreted it in his clothing, discharged it in a public street and within 10 to 15 metres of the victim whom he intended to frighten. AB was there with a group of other males hostile to the victim. The view could be taken, correctly, that no sentence other than one involving full-time imprisonment should be imposed. The sentences imposed were moderate in the circumstances.
Once it is concluded that a sentence of imprisonment for the serious offences committed by AB is appropriate and well open to the sentencing judge, it is difficult to maintain that any lack of due proportion or any discrepancy is marked or gives rise to a justifiable sense of grievance.
It was, of course, the position of AB that a lighter sentence should have been imposed on him having regard to that imposed on Pou.
AB relied on several matters in support of his disparity argument in his written submissions and orally. AB pointed to his being 16½ years of age and a juvenile at the time of the offence and Pou being 18½ years of age. It was submitted that this was a significant gap, and that, in broad terms, AB was with a group of older young men. Neither AB nor Pou had a significant criminal history. While AB conceded that the relevantly random discharge of a firearm in a public place was serious, he submitted that in the circumstances the deliberate attack on the unarmed victim attempting to escape and inflicting three wounds is a considerably more serious offence. Pou had been carrying the knife he used to stab the victim for protection for about two months prior to the event.
Counsel for AB stressed that, whereas the judge found that AB had been somewhat contrite, he did not make a similar finding and in fact made a contrary finding in the case of Pou.
The judge noted that the Probation and Parole report related that Pou blamed the victim and showed no emotion about his own behaviour. The judge rejected any expression of contrition by Pou as it was not genuine. The judge’s finding that AB was somewhat contrite was supported not only on his own view of AB giving evidence but also in the reports of the New South Wales Department of Juvenile Justice and two psychologists.
Counsel emphasised that the judge in AB’s case had decided that a discount should be given towards the top of the range for AB’s plea of guilty. The judge resolved that Pou’s plea of guilty attracted a discount in the middle range of discounts appropriate to a plea of guilty.
In sentencing AB the judge took into account his subjective features He was well aware of AB’s age and the circumstances of the offences. The judge, however, concentrated on what he regarded as the gravity of the offences.
I have found it unnecessary to resolve the issue whether all the offences charged, or perhaps the major offences charged, have to be substantially to the same effect. The accused have to be co-offenders, but their roles and degree of criminality could vary. In substance, in my opinion, the co-offenders would have to be engaged in the same venture or undertaking or incident or events.
In R v Watson, 25 February 1992, CCA unreported, Gleeson CJ said:
“However, as the Federal Court pointed out in the case of R v Wurramarbra (1979) 1 ACR 291, considerations of parity, insofar as they are of legal significance, are difficult to apply in cases where co-offenders have been dealt with on the basis of significantly different charges.”
In my opinion, this is not a case in which this Court should intervene. A custodial sentence was required and considerations of lack of due proportion or disparity would not, in my opinion, lead to intervention.
I propose that leave to appeal against sentence be granted but that the appeal against sentence be dismissed.

33. JAMES J: I agree.

CAMPBELL JA: I also agree. The order of the Court will be, therefore, the order proposed by Justice Smart.

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AMENDMENTS:

14/05/2007 - Incorrect file number on page 1 - Paragraph(s) nil

14/05/2007 - Incorrect CCA file number on coversheet - Paragraph(s) M/A

LAST UPDATED: 14 May 2007