Carney v Regina

Case [2008] NSWCCA 277

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
CARNEY v REGINA [2008] NSWCCA 277

FILE NUMBER(S):
2007/5636

HEARING DATE(S):
Thursday 13 November 2008

JUDGMENT DATE:
25 November 2008

PARTIES:
Todd CARNEY
v REGINA

JUDGMENT OF:
Bell JA Blanch J Hall J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/21/3173

LOWER COURT JUDICIAL OFFICER:
Christie DCJ

LOWER COURT DATE OF DECISION:
22 November 2007

COUNSEL:
C:  V Lydiard
A:  A Francis

SOLICITORS:
C:  S Kavanagh
A:  S O'Connor

CATCHWORDS:
CRIMINAL LAW – SENTENCING – Appeal against severity of sentence – plea of guilty to one count of discharging firearm with intent to prevent lawful apprehension and other firearm offences – where applicant was suffering mental illness at the time of the offence – whether error in objective assessment of case as near worst category of case – whether error in finding operation of general deterrence only marginally reduced – whether sentence is manifestly excessive – consideration of impact of mental illness on sentencing exercise – general deterrence of less importance in this case although counter-balanced by other matters – sentence not manifestly excessive

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Firearms Act 1996

CASES CITED:
Courtney v Regina [2007] NSWCCA 195; (2007) 172 A Crim R 371
Regina v Anderson [1981] VR 155; (1980) 2 A Crim R 379
Regina v Champion (1992) 64 A Crim R 244
Regina v Engert (1995) 84 A Crim R 67
Regina v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
Regina v Israil [2002] NSWCCA 255
Regina v Kilmartin (1989) 41 A Crim R 22
Regina v Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333
Regina v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445
Regina v Mulato [2006] NSWCCA 282
Regina v Pitt [2005] NSWCCA 304
Regina v Scognamiglio (1991) 56 A Crim R 81
The Queen v Verdins [2007] VSCA 102

TEXTS CITED:

DECISION:
Leave to appeal granted.  Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No 2007/5636

BELL JA
BLANCH J
HALL J

TUESDAY 25 NOVEMBER 2008

TODD WILLIAM CARNEY v REGINA

Judgment

  1. BELL JA:  I agree with Hall J.

  2. BLANCH J:  I agree with Hall J.

  3. HALL J: The applicant, Todd William Carney, seeks leave to appeal pursuant to s.5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the severity of sentences imposed upon him by the District Court of New South Wales on 22 November 2007.

    Offences charged

  4. The applicant was charged and pleaded guilty to one count of discharging a firearm with intent to prevent lawful apprehension (contrary to the then s.33A(1), Crimes Act 1900), one count of unauthorised use of a firearm (contrary to s.7A(1), Firearms Act 1996) and one count of unauthorised possession of a firearm (contrary to s. 36(1) of the Firearms Act 1996).

  5. The three offences, to which the applicant plead guilty, were in the following terms:-

    Count 1:That on 26 December 2006 at Miller in the…

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Details
AGLC
Carney v Regina [2008] NSWCCA 277
Case
[2008] NSWCCA 277
Decision Date

CaseChat Overview and Summary

The applicant, Carney, appealed against the severity of his sentence, which was handed down by the District Court of New South Wales. He had pleaded guilty to charges that included discharging a firearm with intent to prevent lawful apprehension, and other related firearm offences. The central issues in this appeal revolved around the assessment of the case's objective seriousness, the degree to which general deterrence should be factored into the sentence, and whether the sentence was manifestly excessive. Additionally, the court examined the impact of the applicant's mental illness on the sentencing process.

In addressing the first issue, the court found that the sentencing judge had correctly evaluated the objective seriousness of the offence, particularly given the dangerous nature of firing a weapon at police officers and the potential harm caused. The court acknowledged the gravity of the offence, which warranted a sentence within the higher range. Regarding the second issue, the court determined that the sentencing judge erred in concluding that the principle of general deterrence was only marginally reduced due to the applicant's mental state. While acknowledging the relevance of the applicant's mental illness, the court found that the judge had not appropriately balanced the diminished culpability with the gravity of the offence. Despite this, the court noted that other factors counterbalanced the reduced importance of general deterrence. Finally, the court concluded that the sentence was not manifestly excessive, taking into account all relevant circumstances, including the applicant's mental health at the time of the offence.

The appeal was dismissed, and the original sentence was upheld. The court found no substantial miscarriage of justice had occurred and that the sentence was appropriate given the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

In the Notice of Application for Leave to Appeal, dated 13 June 2008, the applicant stated that he relied on the following grounds of appeal:-(1)The sentencing judge erred in finding that objectively this case was close to the worst case.(2) The sentencing judge erred in finding that the operation of general deterrence was only slightly ameliorated in the circumstances of this case.(3) The sentence is manifestly excessive in the circumstances of this case.(4) His Honour’s findings in respect of the applicant’s mental illness.Facts The three offences were committed on the same day, that being the 26 December 2006. As acknowledged by the submissions for the applicant, the facts were the subject of agreement with the Crown tendering an agreed statement of facts at the sentencing hearing before the District Court. It is convenient to summarise and reproduce portions of the agreed facts, and I do so below. At about 9.05 pm, on 26 December 2006, a highway patrol vehicle observed the applicant driving his motor vehicle along the M2 Motorway in excess of the speed limit. The police attempted to stop the applicant by activating their warning lights; the applicant, however, continued to speed. When the police activated their sirens, the offender accelerated and a police pursuit ensued. During the pursuit, the applicant turned onto the M7 Motorway, overtaking vehicles and travelling at speeds between 110 kilometres per hour and 165 kilometres per hour. A Police helicopter also commenced pursuit of the applicant. The applicant continued travelling at speed. During his drive, he travelled through two red traffic signals and drove on the incorrect side of the road on three occasions, narrowly missing an oncoming vehicle on one of these occasions. The applicant turned left at the T-Way at Miller before stopping adjacent to a bus shelter. There was a bus containing passengers stopped at the shelter. The two constables in the patrol vehicle drove up towards where the offender had stopped. The applicant took a rifle from the car he had been driving and ran through a vacant area of land next to the T-Way, with the two constables giving chase on foot until realising that the applicant was carrying a firearm. One constable yelled out “stop police, stop police”. The two constables took cover behind the police vehicle. (Another police vehicle had also pulled up with a sergeant of police similarly taking cover behind his vehicle.) The applicant turned and aimed the rifle in the direction of the two constables. He fired a number of rounds towards the police with one projectile striking the roof of the police car (above the front passenger’s door) and another shattering the rear window. Later, the applicant walked to the opposite side of the paddock about 50 to 60 metres away, commenced pacing and further fired at the police who were crouched behind the patrol vehicles. The police observed the applicant point the firearm in the direction of the police helicopter and saw a muzzle flash from the firearm.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I am of the opinion that the sentencing judge did correctly evaluate the objective seriousness of the offence in Count 1 as falling within the higher range. The discharge of the firearm in the direction of police located at ground level and in the helicopter made the offence one of the utmost gravity. When regard is had to the maximum penalty for an offence under s.33A(1) to be 14 years, I do not see any error in the evaluation of the objective seriousness of the offence in Count 1.(2)Ground 2: The sentencing judge erred in finding that the operation of general deterrence was only slightly ameliorated in the circumstances of this case Ms Francis acknowledged that it is for a sentencing judge to assess the extent to which the operation of general deterrence may be moderated in any given case involving a mentally disordered offender. Nonetheless, it was submitted for the applicant that it was “difficult” to appreciate why his Honour, as stated in the sentencing remarks, considered only slight amelioration of the principle of general deterrence was warranted in view of the applicant’s mental state. Ms Francis submitted that in the circumstances of the case, the question of general deterrence had little role to play in the sentencing exercise. Reference was made in support to Regina v Anderson [1981] VR 155; (1980) 2 A Crim R 379, Regina v Scognamiglio (1991) 56 A Crim R 81, Regina v Engert (1995) 84 A Crim R 67 and Regina v Pitt [2005] NSWCCA 304 in relation to the proposition that general deterrence is often accorded little weight when sentencing persons suffering from serious mental illness. The Crown, in its submissions, emphasised the gravity of the offence and that deterrence was important in sentencing for crimes of violence on the street and in public places generally. In the present case, the Crown emphasised the actions of the applicant placed the lives of police officers at risk as well as members of the public. Whilst acknowledging the fact that where an offender suffered from a mental illness or disability at the time of an offence and that this may mitigate the culpability of the offender and result in less weight being attached to the factor of general deterrence, the Crown emphasised the need to examine the particular circumstances in each case. It contended in this respect that the applicant in this case at the time of the offence knew what he was doing and was aware of the gravity of his action. The Crown, however, acknowledged the medical evidence which supported the proposition that the applicant’s paranoia, inter alia, may have had a contributing role to his poor judgment at the time surrounding the offence in Count 1. It contended that it was clear that the sentencing judge had kept well in mind the relevance and the significance of the applicant’s mental state and relevant principles. I am of the opinion that his Honour was in error in stating, in effect, that the operation of general deterrence in this case was to be only marginally reduced. In that respect, whilst acknowledging the principle of general deterrence in cases such as the present, his Honour stated:-“… I recognise that, but again I state that because of the emotional instability of the prisoner at the time of these events, I think the question of general deterrence does assume slightly less importance than might otherwise be the case.” (emphases added)