Ah-Keni v R

[2020] NSWCCA 122

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ah-Keni v R [2020] NSWCCA 122
Hearing dates:	29 May 2020
Decision date:	11 June 2020
Before:	Hoeben CJ at CL at [1]; Harrison J at [77]; Wilson J at [79]
Decision:	(1) Grant leave to appeal. (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW– sentence appeal – offences of use an authorised pistol and fire a firearm in or near a public place – whether objective seriousness of offences properly assessed – whether sentence manifestly excessive – loaded pistol pointed at taxi driver as a “prank” – pistol discharged – objective seriousness correctly assessed at above midrange – sentence not manifestly excessive – appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – s 93G(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(5AA) Evidence Act 1995 (NSW) – s 136 Firearms Act 1996 (NSW) ­– ss 3, 7(1)
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Miller v R [2015] NSWCCA 86 Mulato v Regina [2006] NSWCCA 282 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pham v R [2014] NSWCCA 115 R v DO [2005] NSWCCA 183 R v GWM [2012] NSWCCA 240 Vandeventer v R [2013] NSWCCA 33
Category:	Principal judgment
Parties:	Raymond Ah-Keni – Applicant Regina – Respondent Crown
Representation:	Counsel: G James QC/J Jiang – Applicant G Newton – Respondent Crown   Solicitors: Abbas Jacobs Lawyers – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2018/229300
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2019] NSWDC 237 Date of Decision: 17 April 2019 Before: Colefax SC DCJ File Number(s): 2018/229300

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal from the sentences imposed on him by his Honour Judge Colefax SC (the sentencing judge) sitting in the Parramatta District Court on 17 April 2019.

2. The applicant pleaded guilty in the Local Court to two offences involving the use and discharge of an unauthorised pistol in a taxi early on the morning of 22 July 2018.

1. Sequence 3 – Use an unauthorised pistol (Firearms Act 1996 (NSW) s 7(1), maximum penalty 14 years imprisonment, standard non-parole period 4 years);

2. Sequence 4 - Fire a firearm in or near a public place (Crimes Act 1900 (NSW) s 93G(1)(b), maximum penalty 10 years imprisonment).

3. The applicant was on bail on other charges at the time of committing these offences. He was sentenced separately in the Local Court in respect of those other charges and the present sentences were backdated to commence at the end of the non-parole periods imposed by the Local Court.

4. For the use unauthorised pistol offence (sequence 3), the applicant was sentenced by his Honour to a non-parole period of 3 years and 11 months, commencing 24 October 2018 and expiring 23 September 2022, with a balance of term of 1 year and 4 months, commencing on 24 September 2022 and expiring on 23 January 2024.

5. For the discharge firearm offence (sequence 4), the applicant was sentenced to an entirely concurrent fixed term of 3 years to commence on 24 October 2018 and to expire on 23 October 2021.

6. His Honour declined to find special circumstances so that the non-parole period was approximately 75 per cent of the head sentence.

7. The applicant relies on the following grounds of appeal:

Ground 1 – The sentences and each of them were manifestly excessive

Ground 2 – The sentence judge erred in determining the objective seriousness of the offence

FACTUAL BACKGROUND AND FINDINGS

8. As at July 2018, the applicant was on bail in connection with offences of resisting and hindering police and assaulting police.

9. Whilst on bail, the applicant and Mr Inoke Leo decided (while on what is described as a “bender of illicit drugs”) that it would be a good idea to play a prank on a taxi driver by holding a gun to the driver’s head in order to scare him. That this was the applicant’s intention was agreed between the parties and was before the court as an agreed fact.

10. In the early hours of the morning of 22 July 2018, Mr El Masri was working as a taxi driver. He was doing so to pay for his studies and to assist his young family. His wife was pregnant with their third child.

11. Using his mobile phone, the applicant and his co-offender booked a taxi. Mr El Masri was allocated the task of answering that booking. The applicant gave a pick up address at Yagoona and a drop off address in Burwood when he booked the cab. The pick up address was about 160m from where the applicant lived.

12. Mr El Masri went to the pick up point but no-one was there. Shortly before 5am, the applicant and his co-offender approached the taxi and got into it. The co-offender sat in the front and the applicant in the rear. Both the applicant and the co-offender smelled of alcohol.

13. When the taxi arrived at Guildford, it pulled over and stopped. This was at about 5.13am. The applicant then produced a pistol from the jumper which he had been wearing. The applicant wracked the pistol in the passenger seat. Although the agreed facts did not cover this, the sentencing judge concluded that the only rational inference which could be drawn that the applicant had some familiarity with the operation of a pistol in order to be able to wrack it.

14. As a result of the applicant wracking the pistol an unfired round fell onto the floor. The sentencing judge found that the only rational inference in the circumstances was that the applicant was aware that an unfired round had been ejected from the pistol and that he was therefore aware of the potential of the pistol to still be loaded. The applicant then placed the barrel of the pistol to the neck of Mr El Masri.

15. Instinctively, out of fear and out of the need for self-preservation, Mr El Masri managed to grab the applicant’s forearm. There was a struggle and the pistol discharged because there was at least one other round in it. Mr El Masri was not shot, nor was the co-offender, nor was the applicant, nor any member of the public who might have been in the vicinity. Only the windscreen on the taxi was damaged.

16. The applicant and his co-offender ran from the scene, as did Mr El Masri. The applicant was arrested in relation to the offence on 25 July 2018, approximately three days later when he reported to police in answer to his bail requirements. His bail was revoked.

17. The sentencing judge assessed the objective seriousness of the first offence to be in the upper range. His Honour assessed the second offence to be a midrange offence.

18. The Court had available to it a victim impact statement by Mr El Masri. This was in addition to a report from his treating psychologist. The victim was also being treated by a psychiatrist. The sentencing judge found that the actions of the applicant against Mr El Masri that night had profoundly shattered his life and the lives of his wife and three children.

19. The sentencing judge found that the post traumatic stress disorder from which Mr El Masri suffered as a result of what happened on that night exceeded what would normally be expected for a victim of crime of this kind. His Honour took that into account as an additional aggravating factor of the offending.

20. His Honour found as a second aggravating factor that the applicant’s conduct had given rise to a risk of death to another person. His Honour found as a third aggravating factor that the offence was committed while the applicant was on conditional liberty. A fourth aggravating factor was that the victim was vulnerable.

21. His Honour took into account that the applicant did not give evidence in the sentence proceedings. This meant that the subjective circumstances, i.e. the things personal to the applicant’s background and factors connected with the offending, had to come through a report of Dr Chew. He is a consultant psychiatrist. The sentencing judge rejected paragraph 35 of the report from Dr Chew, dated 15 April 2019. The sentencing judge directed that in accordance with s 136 of the Evidence Act 1995 (NSW) the factual statements in the report were not to be treated as evidence of the truth of the fact but only as information communicated to Dr Chew by the applicant.

22. Despite the qualifications expressed by his Honour in relation to the reliability of what Dr Chew was told by the applicant, his Honour was prepared to accept the following history. At the time of sentencing, the applicant was aged 23. He was born in New Zealand and came to this country when he was aged 11. He has one brother and one sister. His father was an alcoholic and there was some physical abuse in the household when the applicant was growing up. His Honour found that the applicant’s schooling was unremarkable. He left school in year 12 and had undertaken an apprenticeship as a carpenter.

23. His Honour noted that the applicant had abused alcohol and cannabis since the age of 12. He had also abused ecstasy, cocaine and “ice” since he was 16. His Honour found that in the period leading up to the offending, he was consuming three to four grams of cocaine a day, as well as using five to fifteen Xanax tablets and Oxycontin.

24. His Honour noted that the applicant was earlier involved in a motor vehicle accident and that the injuries that he received in that accident were exacerbated by his illicit drug use.

25. His Honour found no causal connection between the applicant’s drug taking, his mental issues, the motor vehicle accident and his offending behaviour.

26. His Honour found that at the time the applicant committed the two index offences, apart from his long term illegal consumption of drugs, he had a minimal criminal history.

27. His Honour accepted that the applicant had the support of his mother and siblings and that he had a trade to go to when released from prison. His Honour considered that these were positive factors in assessing his prospects of rehabilitation.

28. His Honour noted that the applicant had not given sworn evidence of any remorse but had purported to express remorse to Dr Chew in the report which was Exhibit 2. His Honour said that he treated those unsworn expressions of remorse with considerable caution.

29. His Honour noted that during his time in custody, the applicant had not been a model prisoner. He had been found guilty on two occasions of possessing prohibited drugs, of being in possession of an offensive weapon and of receiving an unauthorised article from a visitor. His Honour found that the applicant’s prospects of rehabilitation were guarded. His Honour further found that no sentence other than one of fulltime custody was appropriate for these offences.

30. His Honour found that considerations of general deterrence (i.e. imposing a sentence that would discourage others from similarly offending) and specific deterrence (i.e. imposing a sentence that would discourage the particular offender from further offending) and the protection of the community, were fully operative when considering this matter, as was the need to encourage the applicant’s rehabilitation.

31. His Honour found that the applicant was entitled to a 25 per cent discount because he entered a plea of guilty while the proceedings were in the Local Court. The applicant submitted that his Honour should make a finding of special circumstances based on his youth, that this was his first time in custody and his need of treatment for his addictions. His Honour refused to make such a finding on the basis that no persuasive reason had been put to him for making such a finding. His Honour was also mindful of the criticism of this Court to the effect that findings of special circumstances were often made too easily in the District Court (R v GWM [2012] NSWCCA 240).

32. His Honour explained his decision to make the sentences totally concurrent. It was because his Honour concluded that they constituted one continuous act of criminality. His Honour rejected the Crown submission that there was room for partially accumulating the sentences.

33. His Honour noted that on 25 July 2018 the applicant was sentenced in the Local Court for the matters that he was on bail for. He received a sentence of imprisonment for 8 months with a non-parole period of 3 months which expired 24 October 2018.

34. His Honour explained that, having regard to totality, the sentences which he was going to impose would be backdated to commence from 24 October 2018, i.e. when the non-parole period for the Local Court offences had expired. His Honour found that the applicant had been held in custody since that time, solely referable to the index offence. This finding was in accordance with the applicant’s submissions.

35. His Honour found that what the applicant did on that night was not only foolish but was highly irresponsible and extremely dangerous criminal conduct for which he should pay a serious price. His Honour noted that the applicant was very fortunate that the Crown had accepted that the offending arose out of some need to play a practical joke.

36. His Honour indicated that insofar as the offence of using an authorised pistol was concerned, except for his plea of guilty, his Honour would have sentenced the applicant to a term of imprisonment of 7 years. The plea of guilty meant that the term of imprisonment was 5 years and 3 months and the non-parole period was 3 years and 11 months to date from 24 October 2018 and which would expire on 23 October 2022. His Honour fixed a balance of 1 year and 4 months to date from 24 September 2022 which would expire on 23 January 2024.

37. His Honour finished with the following warning to the applicant:

“50   Whether you are admitted to parole, Mr Ah-Keni, is largely in your hands. It will be up to the parole authority but if you continue to misconduct yourself in gaol, the way you have misconducted yourself to date, your possibility of parole is in peril. You will now go downstairs with the officers, thank you.”

38. In addition to his Honour’s findings, a number of matters were agreed to between the parties. They were as follows:

1. the applicant was on a self-described “bender” with an unknown person at the time;

2. they decided to play a prank on a taxi driver by holding a gun to scare him;

3. the applicant booked a taxi using a mobile telephone;

4. the applicant entered the taxi at 4.56am and was captured on both external and internal CCTV;

5. at 5.30am the applicant produced a pistol from his jumper, reached out with the pistol in his hand and held it against the neck of the victim;

6. the victim out of fear, manoeuvred the firearm over his head with his left forearm, turned around and grabbed the applicant’s wrist. Using his right hand, the victim grabbed the top of the barrel of the pistol and pushed it away from him. The victim then let go of the pistol;

7. in that exchange, the pistol was discharged by the applicant. The bullet penetrated where the front windscreen met the roof of the car, between the sun visor on the left hand side away from the victim.

8. After the shot was fired, the victim turned back facing forwards. The applicant held the pistol up to the victim and screamed out as he opened the door with his spare hand to get out.

39. The victim said that after the shot, all the occupants got out of the taxi and that he saw the applicant and the other male walk away. The victim returned to the taxi and called for help. Police were called and attended the scene.

40. It was common ground that the applicant had cut off his beard and hair so as to alter his appearance. In a conversation with a friend he said:

“I want to go to the Mosque tonight and repent. Repent every single night, cause like straight up.”

On 25 July, the applicant was arrested while reporting as a bail condition for an unrelated matter.

41. As indicated, the applicant relied upon a psychiatric report of Dr Chew, dated 15 April 2019. The consultation took place at the Long Bay Correctional Complex. The applicant told Dr Chew that he had suffered from low mood and depression on and off for most of his life. The applicant said that this had got worse over the preceding two years after he had been involved in a motor vehicle accident in which he was knocked unconscious. He had been hospitalised for two days. He told Dr Chew that he suffered flashbacks and nightmares relating to the accident. The applicant said that his drug use had escalated following the accident. He told Dr Chew that his drug use had substantially escalated in the months leading up to the offences. He told Dr Chew that at that time he was “paranoid” thinking that people were out to get him, watching him and following him. He said that he could hear voices of people making negative comments about him.

42. The applicant told Dr Chew that he had used alcohol and cannabis since the age of 12 or 13. He had used various stimulants, including MDMA, cocaine and “ice” from the age of 16. He said that in the period leading up to the offending, he was using approximately 3-4 grams of cocaine per day. He was also using 5-15 Xanax tablets per day and Oxycodone when he could not get the Xanax. He told Dr Chew that while in custody he had been smoking illicit Buprenorphine up to 4mgs a day. He had not received any treatment for his substance abuse issues.

43. By way of personal background, the applicant told Dr Chew that his father was an alcoholic who had physically abused him. However, his father had given up drinking five years ago. At the time of the offending, the applicant was living with his mother, father and sister at Yagoona.

44. Dr Chew set out the results of his mental state examination of the applicant in his report as follows:

“30   Mr Ah-Keni was dressed in prison greens. His grooming was adequate. He displayed no abnormal psycho-motor activity. He engaged freely and easily. His speech was of normal rate, rhythm, volume and prosody. There was no formal thought disorder. There were no delusions or hallucinations today. He said that his mood was “low and anxious”. His affect was reactive and congruent with mood. He was oriented to time, place and person and his cognition was grossly in tact. He had good insight today into mental health and drug issues.”

45. Dr Chew’s opinion was as follows:

31   Mr Ah-Keni is suffering from a depressive disorder since teenage years. In the context of childhood abuse and exacerbated by motor vehicle accident. He also suffers from Post Traumatic Stress Disorder since the motor vehicle accident. His conditions are exacerbated by a very severe Substance Use Disorder. At the time of the offending behaviour, it appears he had developed a drug induced psychosis.

32   At the time of the offending behaviour, he was experiencing PTSD symptoms re-experiencing symptoms in particular. He was self-medicating with illicit substances to self-medicate an induced psychosis with paranoia and hallucinations as a result.”

THE APPEAL

46. The applicant submitted that when assessing the objective criminality of the index offences, a useful starting point was the principal objectives of the Firearms Act 1996 (NSW) (s 3), i.e. to confirm firearm possession and use as being a privilege that is conditional on the overriding requirement to ensure public safety and to improve public safety by imposing strict control upon the possession and use of firearms.

47. The applicant submitted that without seeking to downplay the seriousness and the potential for harm of pistols as a category, the pistol used by him had a part to play in assessing the objective seriousness of the offence. This was because the pistol used by him was of a small calibre by comparison with other more potent prohibited firearms which were also within the ambit of the section.

48. The applicant accepted that the discharge of any pistol in a confined environment, i.e. a taxi, was dangerous and susceptible of miscalculation. He submitted, however, that the discharge occurred as a result of the struggle with the driver. The applicant submitted that on the agreed facts, the pistol was produced as part of a prank. He submitted that this would allow the Court to find that it was more probable than not, that the discharge of the pistol was unplanned.

46. The applicant submitted that in determining the objective seriousness of a s 93G offence under the Crimes Act, the Court should have regard to the fact that there was only a single discharge.

47. The applicant submitted that while the maximum penalty applicable and the standard non-parole period were yardsticks by which the Court must assess the present offending, the ambit of criminality covered by the legislation was wide. It was capable of applying to other more serious types of offending involving more significant criminal conduct. The applicant submitted that both offences, fell below the hypothetical midrange of objective seriousness.

48. The applicant submitted that he had a strong subjective case. He was aged 23 at the time of the offending. He was residing in the family home with his parents. He had obtained his HSC at Bass High School in 2013. He had commenced a career in carpentry after high school and was employed for four years until 2016. He had no criminal convictions before these offences and this was the first time that he had been incarcerated.

49. The applicant submitted that in 2016, he was involved in a serious motor vehicle accident which had brought an end to his potential rugby league career and his employment. On that issue, he relied upon the history which he gave to Dr Chew. In particular, he relied upon his increased drug use following the motor vehicle accident. The applicant submitted that the Court should accept the diagnosis of Dr Chew as to his mental health difficulties. He submitted that the principles set out in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 (De La Rosa) applied so that less weight should be given to general deterrence and specific deterrence. Allowance should also be made for the fact that his time in prison would be more difficult because of his mental health problems. The applicant relied upon the diagnosis of Dr Chew as establishing a link between his mental condition and the offending.

50. The applicant submitted that his Honour erred in his assessment of the objective seriousness of the offending by not having proper regard to the motivation behind the offending. It did not occur for any sinister purpose but was in the context of a “prank” with the intent of scaring the victim. The applicant submitted that while such action was reckless and irresponsible, it was less serious than if the offending had taken place with criminal intent. The applicant stressed that he had made no efforts to hide his identity when booking the taxi and had made no attempt to disable the internal CCTV installed in the taxi.

51. The applicant submitted that his Honour erred in failing to have regard to his youth. On that issue, the applicant relied upon the statements of principle by Schmidt J in Miller v R [2015] NSWCCA 86. There, her Honour had reiterated the well recognised principle that young persons will often not appreciate the consequences of their actions and act spontaneously without proper consideration. Her Honour stressed the well settled principle that the law recognises and makes allowance for the cognitive, emotional and psychological immaturity of a young person and that this can contribute to offending.

52. The applicant submitted that his Honour erred when he declined to backdate the commencement date for his sentence to a date earlier than 24 October 2018. In support of that proposition, the applicant submitted that his sentence of imprisonment by the Bankstown Local Court was a direct result of his “bail refused status” which was directly due to the index offences. The applicant submitted that by failing to further backdate the commencement of the sentence, his Honour failed to have due regard to the principle of totality. The applicant submitted his Honour was required to have regard to the total period of imprisonment, i.e. that imposed by the Bankstown Local Court, together with the sentence imposed by his Honour.

Ground of Appeal 2 – The sentencing judge erred in determining the objective seriousness of the offence

Consideration

56. The principles relevant to challenging an assessment of the objective seriousness of an offence are set out in Mulato v Regina [2006] NSWCCA 282 at [37] where Spigelman CJ said:

“37   Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. ...”

57. In the same judgment Simpson J said:

“46   The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

58. Applying those principles, it is clear from the factual background that his Honour’s finding that the objective seriousness of the first offence was above midrange and into the upper range, and that the second offence was midrange, was well open to him.

59. It matters not whether the applicant was motivated by a desire to engage in a “prank” or intended some more sinister purpose. The risk and potential consequences were the same. Using a loaded pistol and pointing it at the neck of a victim in the confined space of a taxi in close proximity to other persons was inherently dangerous. This is particularly so when regard is had to the intoxication of the applicant. It is difficult to imagine a more potentially dangerous set of circumstances than those which prevailed here. Not only was the pointing of the pistol at the neck of the victim extremely dangerous, but the victim’s reactions were completely unpredictable. In any event, the possibility that the victim might resist and further add to the danger should have been within the contemplation of the applicant. Finally, the possible long term effect on the taxi driver of this “prank” should have been anticipated.

60. Not only could one of the occupants in the taxi have been killed or seriously injured but persons in the neighbouring houses were also put at risk by this reckless and dangerous behaviour resulting as it did in the discharge of the pistol.

61. The photographs of the taxi and the surrounding area reinforce the extreme danger created by the conduct of the applicant. As was observed by RS Hulme J (Hunt AJA and Johnson J concurring) in R v DO [2005] NSWCCA 183 at [25]:

“25   ... Pointing a loaded firearm at anyone is both dangerous and, because of the danger, very serious. When done in circumstances of aggression or, if not aggression, as an exercise of domination over others such conduct is even more serious. A fortiori is this so when the holder of a weapon is intoxicated, liable to be suffering from the lack of judgment or control common to that state, or the circumstances are pregnant with the possibility of other physical violence or unpredictable conduct by any of those present.”

62. Moreover, it was not open to the applicant to rely upon his self-induced intoxication in any way to mitigate his moral culpability for the circumstances of this offending (Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(5AA)).

63. There is nothing in the report of Dr Chew which invalidates any of the above analysis. The statements by the applicant to Dr Chew were evidence as to what he said, they were not evidence of the truth of that which was said. Despite Dr Chew’s assertion (in general terms) that the applicant’s depression in some way contributed to the offending, he did not explain in his report how that contribution came about. To the extent that the applicant was experiencing some kind of psychotic episode (which was not verified or corroborated) it was due entirely to his abuse of drugs, not to any mental illness which was affecting him.

64. This ground of appeal has not been made out.

Ground 1 – The sentences and each of them were manifestly excessive

Consideration

65. The general principles which apply when considering a ground of manifest excess were conveniently summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

“443   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

66. The applicant’s assertion that he had a strong subjective case does not bear close scrutiny. Despite his statement that his father was an alcoholic, it is clear that whatever issues there were between them had long since ceased to be a problem. The applicant’s father had apparently ceased drinking and the applicant was living with his mother and father at the time. Similarly, the applicant cannot invoke the principles applying to young offenders. Not only was the applicant aged 23 at the time of the offending, but the danger and recklessness inherent in the circumstances of the offending was so overwhelmingly obvious that even a child would have appreciated that there was high potential for death or serious injury inherent in the applicant’s conduct.

67. The applicant’s reliance upon a motor vehicle accident which was said to have occurred in 2016 is problematic. There was no corroboration by way of a document or oral evidence to support either the fact of such an accident or more importantly, its seriousness. To the extent that we know anything about the accident it involved the hospitalisation of the applicant for two days. Inferentially, that does not suggest a serious life changing accident.

68. There are other problems with the applicant’s claim to be suffering from a mental illness and that this illness contributed to the offending in some of the ways identified in De La Rosa. As with the other matters on which the applicant relied, there was no independent corroboration for the presence of such an illness. Given the limitations which his Honour imposed on the tender of Dr Chew’s report, the effect of the applicant’s evidence about these matters rose no higher than to establish that this was what he told the doctor, not that what he told the doctor was true or accurate. One matter which did emerge clearly from what the applicant told Dr Chew was that he was heavily addicted to illegal substances and that it was this addiction and not anything else which had a causal relationship with the offending. Even if the applicant did have a depressive condition and PTSD there was no evidence of how those matters could have contributed to the offending. Accordingly, his Honour was entitled to reject this evidence.

69. The submission by the applicant that the failure to backdate the commencement of the sentence beyond 24 October 2018 involved a failure to apply the principle of totality, is misconceived. In the applicant’s written submissions to the sentencing judge, the following was stated:

“44   In the circumstances, the Court is invited to exercise its discretion in backdating the commencement of any sentence from 24 October 2018.”

70. Accordingly, the applicant obtained the result which he asked for and is bound by the way in which his case was conducted before the sentencing judge.

71. In the sentence proceedings, the applicant relied upon two cases which were said to be comparable to this case. The difficulty with that proposition is that two cases, even if they produced markedly different outcomes to this case, do not establish an appropriate range of sentences for this kind of offending.

72. The utility of referring to previous sentencing judgments was considered by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54] and Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40] where French CJ, Hayne, Kiefel and Bell JJ stated:

“40   The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.”

73. In Pham v R [2014] NSWCCA 115 Hoeben CJ at CL (with whom Adams and Hall JJ agreed) observed at [57]:

“57   There are, however, considerable limitations in relying upon a series of individual cases to establish some kind of range of sentences. In that regard, the observations recently made by Adamson J (with whom Simpson and Davies JJ agreed) in Dang v R [2014] NSWCCA 47 are apposite:

“55    Care must be taken in drawing direct comparisons between sentences passed, those to be passed and those which are, or have been, the subject of appeal: see generally, Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520 at [53]-[56] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Sentencing requires the exercise of discretion. The factors that are germane to the exercise of the discretion include deterrence, both general and specific, rehabilitation and punishment. The exercise of the discretion requires consideration of objective circumstances (the seriousness of the offending conduct) as well as subjective circumstances pertinent to the offender. The number of factors to be taken into account as either mitigating or aggravating under s 21A of the Crimes (Sentencing Procedure) Act 1999 provides an indication of the complexity of the exercise and the concomitant difficulty of identifying “comparable cases”. Although it is orthodox for such cases to be identified for the benefit of the sentencing judge, they can be no more than a guide.””

74. In Vandeventer v R [2013] NSWCCA 33 at [45] Adamson J (McClellan CJ at CL and Rothman J agreeing) said:

“45   One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.”

75. This ground of appeal has not been made out.

76. The orders which I propose are:

1. Grant leave to appeal.

2. Dismiss the appeal.

77. HARRISON J: I agree with Hoeben CJ at CL.

78. The applicant’s conduct requires some further comment. It was clearly both very dangerous and entirely unacceptable for the applicant to point a loaded firearm at the driver of a vehicle in circumstances where a self-protective response from him was likely. I find the characterisation of what occurred as some kind of practical joke or prank very difficult to accept having regard to the fact that the weapon was actually loaded. The fact that the Crown was prepared to agree with that characterisation is as fortunate for the applicant as the fact that no one in the vehicle or the street was killed or injured.

79. WILSON J: I agree with Hoeben CJ at CL.

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Decision last updated: 11 June 2020