Dixon v R

[2020] NSWCCA 123

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Dixon v R [2020] NSWCCA 123
Hearing dates:	25 May 2020
Decision date:	11 June 2020
Before:	Hoeben CJ at CL at [1]; Harrison J at [60]; Beech-Jones J at [61]
Decision:	(1)   Grant leave to appeal. (2)   Allow the appeal. (3)   The sentence imposed by Grant DCJ at Parramatta on 20 September 2019 is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 8½ years, commencing 1 May 2017 and expiring 31 October 2025, with a non-parole period of 5 years, expiring 30 April 2022.
Catchwords:	CRIMINAL LAW – sentence appeal – firearm offences – application by offender – most serious offence fire firearm at dwelling house with reckless disregard for safety contrary to s 93GA(1) of the Crimes Act – whether error in assessment of criminality – whether principles in Bugmy v R [2013] 249 CLR 571; [2013] HCA 37 properly applied – whether sentence manifestly excessive – factual error identified in indicative sentence – effect on aggregate sentence – appeal allowed – applicant re-sentenced.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 33B(1)(a), 93GA(1), 112(3) Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Firearms Act 1996 (NSW) – s 62(1)(b)
Cases Cited:	Ali v R [2010] NSWCCA 35 Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 House v The King (1936) 55 CLR 499; [1936] HCA 40 Karout v R [2019] NSWCCA 253 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Mulato v Regina [2006] NSWCCA 282 Powell v R [2014] NSWCCA 69 R v Campbell; R v Smith [2019] NSWCCA 1 R v Lambell [2019] NSWDC 78
Category:	Principal judgment
Parties:	Mathew Dixon – Applicant Regina – Respondent Crown
Representation:	Counsel: S Kluss – Applicant D Patch – Respondent Crown   Solicitors: R Hill – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2017/130082
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 20 September 2019 Before: Grant DCJ File Number(s): 2017/130082

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentence

On 20 September 2019, the applicant was sentenced by his Honour Judge Grant at the Parramatta District Court to an aggregate sentence of imprisonment for 11 years, commencing 1 May 2017 and expiring 30 April 2028 with a non-parole period of 7 years expiring 30 April 2024 for four offences.

Count 1 – Use offensive weapon with intent to commit an indictable offence, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 12 years imprisonment. The indicative sentence was 3 years imprisonment.

Count 2 – Fire firearm at dwelling house with reckless disregard for safety, contrary to s 93GA(1) of the Crimes Act, which carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 5 years. The indicative sentence was imprisonment for 7 years 6 months, with a non-parole period of 5 years.

Count 3 – Possess shortened firearm without authority, contrary to s 62(1)(b) of the Firearms Act 1996 (NSW) which carries a maximum penalty of 14 years imprisonment. The indicative sentence was 3 years imprisonment.

Count 4 – Possess shortened firearm without authority, contrary to s 62(1)(b) of the Firearms Act which carries a maximum penalty of 14 years imprisonment. The indicative sentence was 3 years imprisonment.

2. The applicant seeks leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

Grounds of Appeal

Ground 1 – His Honour erred in his assessment of the criminality of the offending in Count 2 by finding that the applicant was the person who actually discharged the firearm.

Ground 2 – His Honour erred in his assessment of the criminality in relation to Counts 1, 3 and 4.

Ground 3 – His Honour failed to apply his finding that the principles in Bugmy applied to the applicant.

Ground 4 – The sentence imposed by his Honour was manifestly excessive.

Factual background

3. The hearing on sentence proceeded on the basis of agreed facts which were set out at p 9 of the appeal book as follows:

“2   The victim in this matter is Vincent Savona, aged 70 years at the time of the offending. He lives by himself ... [in] a two-storey unit block. Mr Savona’s unit is a bed-sit style apartment with an attached kitchen and bathroom on the ground floor. His large back windows look out onto the carpark at the rear of the property.

Count 1 - possess firearm with intent to commit the indictable offence of intimidation

3   Several weeks before 24 April 2017 at about midday, the victim was at home with the main front door open, and the security door locked. Dixon arrived and knocked on the security door.

4   Dixon said, “Let me in. If you don’t let me in I am going to rip the security door off the hinges”. Dixon was standing at the door holding a khaki-coloured sack with the butt of a rifle protruding out of the bag.

5   The victim unlocked the security door and let Dixon in. Dixon entered the unit and was ranting and raving. Dixon was about two feet away from the victim when he pulled the rifle out of the sack and pointed it towards the victim’s groin.

6   The victim was scared and said, “You are not seriously going to shoot me, are you?” Dixon replied, “Well the safety is off”. The victim said, “Leave now and go and spend some time with your wife and kids. There is nothing to be gained here.”

7   At this point, Dixon put the rifle back in the sack and walked out of the unit. The victim did not immediately report the matter to police.

Count 2 – fire firearm at a dwelling house

8   On the evening of 24 April 2017, the victim was at home watching television by himself. The main front door and the security door were both locked and closed. At about 8pm, the victim heard a knock on the front security door. The victim opened the main door and saw a man known to him as “Theo” standing on the other side of the security door.

9   Dixon was standing behind Theo with another, taller man unknown to the victim. The victim said, “What do you want?” Theo replied, “Have you got anything?” The victim said, “No I've stopped selling them.” Theo said, “Are you sure you don’t have anything?” The victim said, “No”. At this point, the victim shut the main door.

10   The victim stood behind the main door once it was closed. About thirty seconds later, there was a loud bang on the front door.

11   The victim immediately got on the floor and put his right shoulder firmly up against the door to prevent anyone getting into his unit. He then screamed for help.

12   At this time, Glenn Freeman was inside his unit on the floor above the victim. After hearing a loud bang, Mr Freeman walked out his front door onto the balcony. He looked down towards the victim's unit and saw three men kicking the victim’s door. Two of these men were Dixon and the man known to the victim as Theo.

13   Mr Freeman saw the tallest of the three men pull out what he thought was a sawn off shotgun with a rounded handle from a bag he was carrying.

14   Mr Freeman heard the men yelling at the victim and being abusive as they were kicking the door. He heard the victim yelling, “Go away. I have nothing”. At this point, Mr Freeman grabbed an old television by his front door and threw it over the balcony towards the three men in an attempt to scare them off. He then ran inside his unit.

15   A short time later, the victim and Mr Freeman heard what they thought sounded like a shotgun being fired. Immediately after the victim heard the gunshot, he felt splinters of glass fall on top of him. He suffered a small cut to the left side of his head. He noticed that the glass of a photo frame had been shattered by what appeared to be seven holes.

16   It was later discovered that a shotgun cartridge had been fired through the victim’s back window and curtains. A crime scene officer formed the opinion that the shot was discharged from the car park area towards the rear window of the victim’s unit.

17   About five seconds after he heard this shot, Mr Freeman heard the screeching of tyres coming from the rear car park. With a neighbour he went back to check on the victim.

18   The victim did not call the police. He stayed the night elsewhere. At 8am the next morning the victim walked back to his unit and saw the police standing at his front door. The victim subsequently gave a statement to the police.

Count 3 – possess shortened firearm (shotgun)

Count 4 – possess shortened firearm (self-loading rifle)

19   At about 10am on 29 April 2017, a red Subaru being driven by Dixon was stopped by police at Miller Shopping Centre. The police cautioned Dixon and then asked him a number of questions, including whether he knew anything about a shooting at the victim’s house. Dixon said, “I don’t know anything about it. I was at home at the time.” He denied knowing the victim. He was not arrested at the time.

20   Also in the car with Dixon was Crystal Markham. Her mobile telephone was seized and later examined. Police found two photographs of Dixon holding a sawn-off shotgun in one photo, and a sawn-off shotgun and a rifle in another. The photographs were taken on 18 April 2017.

Dixon’s arrest

21   At about 1:10pm on 1 May 2017, police attended 16 Lomani Street, Busby where the police had arranged to meet Dixon. He was placed under arrest and later conveyed to Green Valley Police Station. He declined to participate in an electronically recorded interview.”

Proceedings on sentence

4. As a preliminary matter, the sentencing judge noted that on the original indictment the applicant had been charged with a separate break and enter offence, occurring on 24 April 2017, where it was alleged that he in company with two others had arrived with a shortened shotgun and attempted to break into the victim’s apartment, contrary to s 112(3) of the Crimes Act. The maximum penalty for that offence was 25 years with a standard non-parole period of 7 years. After negotiation this charge was not proceeded with. The charge which continued to be pursued by the Crown was count 2 on the present indictment, i.e. fire a firearm at a dwelling house with disregard for safety, contrary to s 93GA(1) of the Crimes Act.

5. It was common ground that it was only after the two break and enter charges contrary to s 112(3) of the Crimes Act had been withdrawn that the applicant pleaded guilty to the Counts 1 and 2 on the present indictment.

6. The Crown accepted that in respect of counts 1, 3 and 4 on the present indictment, the applicant was entitled to a 25 per cent discount but in respect of Count 2, the Crown submitted that the discount for the plea should be in the order of 5 to 10 per cent.

7. The sentencing judge decided that issue against the Crown and allowed a discount of 25 per cent in respect of Count 2. His Honour cited his decision in R v Lambell [2019] NSWDC 78 at [4] as authority for that finding.

“4   It has been argued that the plea of guilty was offered by the offender at the first reasonable opportunity after the indictment appeared in its current form. The plea by the offender has resulted in a significant utilitarian value. The observation by Howie J in R v Borkowski (2009) 195 A Crim R 1 at [32] the utilitarian value of a delayed plea is less and consequentially the discount is reduced even if there has been a plea bargain was obiter and not the ratio of the appeal. His Honour relied upon the R v Dib [2003] NSWCCA 117. In Dib Hodgson JA, when dealing with the ground that the sentencing Judge erred in the assessment of the appropriate discount for the plea of guilty, said at [3];

“In my opinion the amount of any discount to be allowed by reason of the utilitarian benefit of a plea of guilty should not be reduced on the ground that the plea was offered in association with the abandonment by the Crown of a greater charge and if in such a case the plea offered, as soon as the Crown indicates willingness to accept a plea to a lesser charge, it should be regarded as being made at the earliest opportunity. To hold otherwise would be inconsistent with a presumption of innocence of the greater charge which in those circumstances must stand unaffected”.” (Sentence judgment 4.3)

8. The sentencing judge continued:

“What was being set out in R v Dib was that a sentencing judge has a discretion firstly as to whether the plea has been entered at the earliest opportunity and, if so satisfied that it has been entered at the earliest opportunity, the judge has a discretion to afford the offender a discount of up to 25 per cent. The Crown apparently agreed with that approach.”

9. When considering the objective seriousness of the offending, the sentencing judge cited the following observations by Rothman J in R v Campbell; R v Smith [2019] NSWCCA 1 at [9]:

“9   The possession and use of firearms in society is an extremely troubling aspect, for which general deterrence and specific deterrence loom large. The possession of weapons generally, by which I include knives, has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of other criminal activity, puts at risk the rule of law and the appropriate relationship between members of society.”

10. The sentencing judge also noted an earlier observation of Rothman J to the effect that traditionally the courts had treated firearm offences “far too leniently” (at [5]).

11. It was against that background that his Honour determined that the offence in Count 2 was the most serious. Having set out the relevant agreed facts, his Honour found:

“I am satisfied beyond reasonable doubt that this offender fired the shotgun. I am so satisfied due to the following reasons:

1.    Several weeks before this offence the offender attended at Mr Savona’s apartment armed with a firearm;

2.     He was alone and produced a firearm which he had in a sack and threatened the victim;

3.    It demonstrated the ability of the offender to possess an illegal firearm and his mindset to threaten the victim with it;

4.    Photographs taken on 18 April 2017, six days before this offence, show the offender in possession of a sawn-off shotgun and a rifle;

5.    The possession of a shotgun six days earlier and its use on 24 April 2017 are consistent with the offender being the shooter;

6. There is no evidence to suggest that Mr Zabakly or the man were in possession of the shotgun on 24 April 2017.”

12. His Honour assessed the objective seriousness of Count 2 at midrange. In reaching that conclusion, his Honour had regard to Powell v R [2014] NSWCCA 69 (Powell), a decision of Button J (with whom Basten JA and R A Hulme J agreed). It was an appeal asserting manifest excess. The facts were that the applicant and another man attended a house where a number of boarders lived. As a result of dogs barking and seeing the co-offender through a window, the home owner opened the door. There was some conversation and the co-offender walked off. The home owner returned to his lounge room and then heard one or two shots causing him to throw himself to the ground. Several days later, police identified a small hole in the blinds of the front window. A projectile was found lodged in a section of gyprock in the kitchen/dining area. The applicant was charged with an offence contrary to s 93GA(1). At the time the applicant was sentenced, the offence was not subject to a standard non-parole period.

13. His Honour assessed the offending in Count 2 as objectively more serious than that in Powell because the victim suffered a cut to the left side of his face from splinters of glass caused by the shot and its aftermath. His Honour observed that the victim was very lucky that he was not standing at the time the shot was fired. His Honour found that the indiscriminate discharge of a shotgun into the residence had the potential to maim or kill the victim.

14. Powell had originally been sentenced to a head sentence of 9 years with a non-parole period of 5 years. He was successful in his manifest excess appeal with the sentence being reduced to 7 years with a non-parole period of 4 years. The sentencing judge noted that although Powell did not set out any binding principles, Button J had said at [30]:

“The imposition of a lengthy sentence for this dangerous and antisocial criminal act was inevitable. ...”

15. The sentencing judge concluded his consideration of Count 2 by observing:

“People should not possess firearms. It is illegal and strikes at the fabric of society. People should not use firearms and, if they do, they should be sent to gaol for long periods of time to deter other would-be users of firearms. The dominant sentencing purposes are general deterrence, specific deterrence, denunciation and protection of the community.” (Sentence judgment 10.4)

16. In relation to Count 1, his Honour found:

“The offender showed aggression to the victim. He threatened to rip the security door off its hinges. As a result of this threat the victim allowed the offender to enter. The offender pulled a rifle out of a sack and pointed it towards the victim’s groin. The victim was scared but had the ability to [dissuade] (sic) the offender from not doing anything further even though the offender said the “safety is off”.” (Sentence judgment 10.8)

17. The sentencing judge found that the offending in Count 1 was below midrange in that “the rifle was produced for a short period of time and the offender left immediately after the victim told him to” (Sentence judgment 11.2). In relation to Counts 3 and 4, the sentencing judge said:

“The offending demonstrates the offender’s ready access to firearms, which in turn informs the Court that the protection of the community looms large as part of the overall sentence exercise. I accept the Crown’s submission that the objective seriousness can be assessed at below the mid range.” (Sentence judgment 11.4)

18. Having assessed the objective seriousness of the offending, the sentencing judge reviewed the applicant’s subjective case. Because the applicant did not give evidence, his Honour relied on a report from Mr Machlin, a clinical psychologist. The applicant was born in Sydney and raised in the Liverpool area. His mother is of Aboriginal descent and he identified as Aboriginal. The applicant’s father had ongoing problems with alcoholism. From the age of ten, the applicant recalled recurrent domestic violence perpetrated by his drunken father against his mother. He recalled being sent away with his siblings to stay with other family members when his mother was recovering from these violent episodes. The applicant had a troubled relationship with his father.

19. When the applicant reached his teens he tried to protect his mother which caused his father to direct his violence towards him. This caused the applicant to “take off and hang out in the streets”. By the time he turned 15, his parents had separated and he was already getting into trouble with the law and spending time in boys’ homes. It was common ground that the applicant had spent a majority of his adult life in prison.

20. The sentencing judge set out the following extract from the report of Mr Machlin:

“Mr Dixon attended primary school in Sadleir, where he recalled being placed in special classes because of his poor literacy. He recalled being bullied about his family background, that is, ‘My mum being black and I’m white’. He was suspended a number of times but never expelled. Mr Dixon commenced high school at Sir Joseph Banks and quit after a matter of weeks. He has since incurred recurrent prison admissions and only held employment in the community for brief periods. When last at liberty he was unemployed”. (Report p2.8)

21. Under the heading “Relationship and Children”, Mr Machlin reported that the applicant had been with the same partner, Sarah, for the past 20 years since the age of 16. Together they had a daughter aged 16 and two sons aged 10 and five. The three children reside with their mother in Macquarie Fields and the applicant’s mother provides some domestic help.

21. Under the heading “Substance Abuse”, Mr Machlin reported that the applicant started smoking marijuana at 13. He has struggled with heroin addiction all his life since the age of 15. Although the applicant had tried other drugs including amphetamines, methamphetamine and cocaine he did not persist with them. His drug of choice had been heroin. He had completed methadone and buprenorphine programs while in custody on other occasions. He had participated in the Drug Court Program some years before but was terminated after nine months. He had attended the EQUIPS Program which targeted addiction a number of times without any perceived benefit.

22. The applicant was born in October 1982 and was aged 37 at the time of sentencing. He had an extensive criminal history. He was unable to estimate how many times he had been sent to prison when asked by Mr Machlin. The applicant thought that the longest period during which he had been out of prison was in 2012 when he was part of the Drug Court Program for nine months. The usual pattern was for him to be free for only a few months before being arrested again for committing offences to support his heroin habit.

23. The applicant had been in custody for two years since his arrest for these offences. He found that the absence of his family was the most difficult part of being in prison. The applicant told Mr Machlin about his gratitude for his partner’s ongoing support and his hopes that he could be rehabilitated.

24. His Honour accepted the diagnosis by Mr Machlin that the applicant had a substance use disorder in that he had sustained an opiate addiction through most of his adult life to the severe detriment of his lifestyle and family functioning. Mr Machlin found that longstanding family dysfunction, exposure to violence and the chronic impact of incarceration had almost certainly affected the applicant’s personality and mood functioning and that it was quite likely that he had experienced stress, anxiety and depression on the scale of a clinical condition at various times in his life.

25. Under the heading “Conclusion and Recommendations”, Mr Machlin opined:

“Mr Dixon was raised in a situation of recurrent domestic violence between his parents, who both were heavy drinkers. As the eldest he bore the brunt of the situation, trying to shield his younger siblings, and later incurring his father’s violence when trying to protect his mother. He performed poorly and was maladjusted at school. He became isolated from his mother and siblings when they were taken into refuges and from there at that time was in and out of boys’ homes.

Heroin addiction has pervaded his life since his teens, leading to recurrent prison admissions throughout his adult life. The indications are that he has never recovered from the adversities of his upbringing and has been institutionalised from a young age. Against this background his ongoing heroin addiction has presented insurmountable challenges for him. He is contrite about his offences.

Mr Dixon would benefit from reintegration support within the structures of Corrective Services on release, including a residential rehabilitation placement under the supervision of Probation and Parole”. (Report p 5-6)

27. In a letter to the court, his long term partner said:

“Matthew has faced a lot of hurdles in his life, with a violent father and alcoholism from both parents. I have seen how good Matthew can be as a partner and a father. I know that he can be the man he wants to be with some support. ...

Unfortunately when Matthew runs into old friends, old habits also form and he has made some bad decisions. During these times Matthew doesn’t want the kids or myself to see him like this so he tends to stay away. ...

I am willing to stand by Matthew. He has tried the last couple of times to help himself with his drug problem. With the help of a rehabilitation program and our continued support I am positive he can make changes that he needs and wants to make in his life.”

28. In relation to the applicant’s criminal record, his Honour noted that he first appeared before the Children’s Court in 1996 when he was aged 13 and had appeared before the courts on at least 45 occasions since then. His longest sentence was 4 years with a non-parole period of 2 years and 6 months imposed by the Parramatta Drug Court on 24 September 2013. His Honour concluded that his criminal record disentitled him to leniency and that his prospects of rehabilitation were “bleak”.

29. The sentencing judge dealt specifically with the effects of the applicant’s upbringing as follows:

“The offender has had a terrible life, raised in a household surrounded by alcohol abuse and violence. I have taken into account the social deprivation experienced by the offender. The effects of profound childhood deprivation do not diminish with the passage of time and repeated offending. “Full weight” should be given to an offender’s deprived background in every sentencing decision: Bugmy v R [2013] 249 CLR 571 at [44].

In Bugmy v R the plurality at [40] said:

“40. …The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way”.

It was Hoeben CJ at CL’s understanding of that statement:

“That it refers to the ultimate effect of that factor. The plurality were not saying that a consideration of this factor was optional. What the plurality clearly had in mind was that even when that factor is taken into account there may be countervailing factors (such as protection of the community) which might reduce or eliminate its effect”: Ingrey v R [2016] NSWCCA 31 at [35].

The inability of the offender to control his drug use and the commission of offences increases the importance of protecting the community from the offender.” (Sentence judgment 15.1)

30. His Honour found special circumstances because of the applicant’s need for assistance in reintegrating with the community and to deal with the risk of institutionalisation. His Honour noted that protection of the community and rehabilitation were not necessarily opposites when considering what was appropriate for the applicant.

31. It was agreed between the parties that the sentence should be backdated so as to commence on 1 May 2017.

32. His Honour noted that there should be a notional accumulation between all of the offences, including Counts 3 and 4 because separate firearms were involved.

THE APPEAL

Ground 1 – His Honour erred in his assessment of the criminality of the offending in Count 2 by finding that the applicant was the person who actually discharged the firearm.

33. The applicant pleaded guilty to Count 2 on the basis that he and the other two offenders had been involved in a joint criminal enterprise to discharge the firearm. In written submissions in the sentence proceedings, the applicant submitted:

“It is submitted that the evidence suggests that it was most probably not the offender Dixon who fired the shotgun. He should be sentenced therefore for this offence on the basis that he was present and the firearm was discharged as part of a joint criminal enterprise.”

34. The sentencing judge did not accept that submission. His reasons are set out at [11] hereof. His Honour found as a fact that it was the applicant who had discharged the shotgun towards the victim’s house.

35. The applicant submitted that it was not open to the sentencing judge to make that finding beyond reasonable doubt. The applicant submitted that his Honour erred when he set out as one of his reasons for making the impugned finding that “there is no evidence to suggest that Mr Zabakly or the [third] man were in possession of the shotgun on 24 April 2017.”

36. The applicant submitted that this was because the agreed facts when summarising the evidence of Glen Freeman recited:

“Two of these men were Dixon and the man known to the victim as Theo. Mr Freeman saw the tallest of the three men pull out what he thought was a sawn-off shotgun with a rounded handle from a bag he was carrying.”

Consideration

37. While I have my doubts as to whether reasons 1 – 5 were sufficient to establish beyond reasonable doubt that the applicant was the shooter, it is clear that reason 6 is incorrect. Because of the observation attributed to Mr Freeman concerning the production of a shotgun by the tallest of the offenders, his Honour’s finding that the applicant was the shooter cannot stand.

38. It is also clear that this finding by his Honour played an important part in his Honour’s assessment of the indicative sentence for Count 2. The error is such as to place in doubt the appropriateness of the aggregate sentence given that Count 2 played such an important part in its formulation.

39. I am also somewhat concerned at the weight given to the decision of Powell. An important difference between Powell and this case was that the sentence in Powell was imposed after a trial. There was no discount for an early plea. Moreover, a single decision, such as Powell, does not provide any guidance as to what is an appropriate range of sentences for offending of this kind.

40. Accordingly, I have concluded that House v The King (1936) 55 CLR 499; [1936] HCA 40 error has occurred and that in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 it is necessary for the applicant to be re-sentenced in this matter.

Ground 2 – His Honour erred in his assessment of the criminality in relation to Counts 1, 3 and 4.

41. The applicant submitted that his Honour erred in the assessment of the objective seriousness of the criminality in Counts 1, 3 and 4 because too much weight was given to the decision in R v Campbell; R v Smith [2019] NSWCCA 1. The applicant submitted that apart from a general similarity in the offending, there were significant differences between that case and this one. In R v Campbell; R v Smith a Form 1 was involved and the overall circumstances were far more serious than the factual scenario in this case. The applicant submitted that this was particularly so when the only basis for liability in relation to Counts 3 and 4 was the depiction of the applicant in a staged photograph found on his girlfriend’s phone.

42. The applicant submitted that a finding that the objective seriousness of those counts was “below the midrange” was too high and that the objective criminality for Counts 3 and 4 should have been assessed as low range.

Consideration

43. This Court has stated on a number of occasions that a finding of objective seriousness is a matter classically within the discretion of the sentencing judge and that this Court will be slow to set aside such a finding: Mulato v Regina [2006] NSWCCA 282 at [37]; Ali v R [2010] NSWCCA 35 at [33]; Karout v R [2019] NSWCCA 253 at [40].

44. Applying the principles in those cases, it cannot be said that his Honour erred in finding that the objective seriousness of the offending in Count 1 was below midrange. That part of the Ground of Appeal has not been made out.

45. The assessment of the objective seriousness of the offending in Counts 3 and 4 is, however, in a different category. The information concerning those offences is sparse. Taken with the use of a firearm in Count 1, it can be accepted that the applicant had access to at least one firearm. The evidence is, however, silent as to the nature of that access. All that we know in relation to Counts 3 and 4 is that the applicant had possession of the two firearms for a time on that day. There is no evidence as to ownership or accessibility. There is no evidence as to the use of those firearms by the applicant except Count 1. Apart from this episode of offending, there is no association with firearms in any of the applicant’s extensive offending before these incidents.

46. It follows that despite the heavy burden of establishing House v The King error, insofar as Counts 3 and 4 are concerned, I have concluded that such error has been established and that the objective seriousness of these offences should be characterised as low range. It follows that this will need to be taken into account on re-sentence.

Ground 3 – His Honour failed to apply his finding that the principles in Bugmy applied to the applicant.

47. The applicant submitted that it was established that:

(i)   he identifies as indigenous;

(ii)   his father had ongoing problems with alcoholism;

(iii)   from the time he was ten or eleven, he recalled recurrent domestic violence perpetrated by his alcoholic father against his mother;

(iv)   he recalled being sent away with his siblings to stay with other family members when his mother was recovering from his father’s violence.

(v)   in his teens, he tried to protect his mother which led to his father directing violence towards him, causing him to become homeless;

(vi)   he had poor literacy and was bullied in relation to his family background.

48. The applicant noted that Mr Machlin had found that because of long standing family dysfunction and exposure to violence, there was likely to be an adverse effect on his general personality and mood functioning and “It [was] quite likely that he had experienced stress, anxiety and depression on the scale of a clinical condition at various times throughout his history”.

49. The applicant submitted that his background, criminal record, circumstances and overall offending were not in those circumstances such as would deprive him of Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 considerations. Even so his Honour appreciated that those considerations had to be balanced against the need to protect the community. On that issue his Honour said:

“The inability of the offender to control his drug use and the commission of offences increases the importance of protecting the community from the offender.” (Sentence judgment 15.8)

Consideration

50. It is clear from the emphasis given by his Honour to the applicant’s deprived and violent upbringing that his Honour was very conscious of the relevance of those matters to an assessment of the applicant’s moral culpability for his offending. His Honour set out in considerable detail the assessment of Mr Machlin of those matters and their effect on the applicant and the observations of the applicant’s partner. His Honour also dealt with the Bugmy issue quite separately as a part of his judgment.

51. When taking into account the Bugmy factors, his Honour could not ignore that while the applicant’s deprived and violent upbringing reduced his moral culpability, the sheer volume and consistency of his offending had to be balanced against those considerations. His Honour clearly engaged in that difficult balancing task when reaching his conclusion as to sentence. There is no suggestion in anything that his Honour said that he had concluded that the protection of the public prevented him from taking into account the effect of the applicant’s upbringing on his moral culpability. As often happens in sentencing, his Honour had a difficult balancing task to perform in reconciling competing considerations.

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

Ground 4 – The sentence imposed by his Honour was manifestly excessive.

53. Given that the applicant will have to be re-sentenced, there is no useful purpose to be served in dealing with this Ground of Appeal.

Re-sentence

54. As indicated above, there was an issue in the sentence proceedings as to whether the 25 per cent discount for the utilitarian value of an early plea of guilty should apply to Count 2. His Honour concluded that it should because of his reading of the decision in R v Dib [2003] NSWCCA 117. I agree with the conclusion arrived at by the sentencing judge, particularly when the Crown appears to have conceded that proposition in the course of the sentence hearing.

55. Although being part of a joint criminal group responsible for the discharge of a firearm at a dwelling with reckless disregard for safety, is objectively serious, it is not as serious as being the member of such a group who actually discharged the firearm. Accordingly, that difference needs to be kept in mind on re-sentence. Similarly, the Bugmy considerations have to be taken into account but balanced against the inevitable risk to the public inherent in the applicant’s offending. Because there were four offences, considerations of accumulation and concurrency, together with totality, also have to be kept in mind. In this case, specific deterrence is important because of the applicant’s criminal record.

56. Despite the applicant not being identified as the shooter, I would still characterise the objective seriousness of this offending in respect of Count 2 as midrange, albeit not as serious as if he was the person who had discharged the shotgun. While general deterrence also has a part to play, the application of that principle needs to be tempered by the hardships surrounding the applicant’s early years. On re-sentence it is also necessary to have regard to the conclusions arrived at in relation to the Grounds of Appeal. In that regard, the assessment of the objective seriousness of Counts 3 and 4 is important.

57. Taking all those matters into account, by way of an instinctive synthesis I have concluded that the aggregate sentence imposed by the sentencing judge should be quashed and in lieu thereof, the applicant should be sentenced to an aggregate sentence of imprisonment for 8½ years with a non-parole period of 5 years.

58. The indicative sentences are as follows:

Count 1 – 3 years imprisonment.

Count 2 – 5 years and 6 months with a non-parole period of 3 years and 3 months.

Count 3 – 1 year and 6 months.

Count 4 – 1 year and 6 months.

59. Accordingly, the orders which I propose are:

1. Grant leave to appeal.

2. Allow the appeal.

3. The sentence imposed by Grant DCJ at Parramatta on 20 September 2019 is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 8½ years, commencing 1 May 2017 and expiring 31 October 2025, with a non-parole period of 5 years, expiring 30 April 2022.

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

61. BEECH-JONES J: I agree with Hoeben CJ at CL.

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I certify that this and the 19 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law and of the Court.

Morna Lynch

Associate

Date: 11 June 2020

Decision last updated: 11 June 2020