Haidar v The Queen

[2007] NSWCCA 95

New South Wales
Court of Criminal Appeal

CITATION:	HAIDAR v R [2007] NSWCCA 95
HEARING DATE(S):	16 March 2007
JUDGMENT DATE:	5 April 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J; Hislop J
DECISION:	By majority leave to appeal granted; Appeal dismissed
PARTIES:	Nicholis HAIDAR Regina
FILE NUMBER(S):	CCA 2006/2736
COUNSEL:	Crown: Ms N Noman Applicant: Ms A Francis
SOLICITORS:	Crown: S Kavanagh Applicant: S O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/0001
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ

- 19 -

2006/2736

McCLELLAN CJ AT CL
HULME J
HISLOP J

Thursday, 5 April 2007

Nicholas HAIDER v R

Judgment

1 McCLELLAN CJ at CL: I have had the considerable benefit of reading in draft the reasons for judgment of Hulme J. I gratefully adopt his Honour’s account of relevant factual matters and his analysis of the sentencing judge’s reasons. However, I have concluded that this is not a matter where this Court should intervene.

2 Hulme J identifies the fact that the sentencing judge concluded that the applicant was not suffering from mental illness “such that he did not know what he was doing or the difference between right and wrong such would less the importance of general deterrence.” This finding accords with the relevant evidence.

3 However, as Hulme J indicates this was not an end of the matter. There will be occasions where a defect in intellectual functioning may have the consequence that less weight should be given to general deterrence. As his Honour points out the rationale for that principle was explained by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at [254]. It derives from the fact that a person who suffers from a mental disorder or abnormality may by reason of a lack of normal cognitive faculties or emotional restraints have a limited appreciation of the wrongfulness of an act or its moral culpability. Although the sentencing judge did not address these matters, in my view, in this case they would not lead to a conclusion different to that determined by the sentencing judge.

4 The evidence disclosed that the applicant was a person with below average reasoning, information processing and impulse control. However, the fact that a person falls below the average in these functions does not, of itself, justify a more lenient sentence than is appropriate for a person who may be average or above average in these functions. A high level of cognitive reasoning and related functions is not required for a person to know that a firearm should not be discharged in a public street at night when his or her own security is not threatened, merely for the purpose of frightening another person. The applicant was a person who by reason of his occupation as a security guard was permitted to carry a loaded firearm. The evidence confirmed that he was able to perform satisfactorily in his employment. This must have involved him in making decisions about when to react to a variety of situations which he confronted, including when it was appropriate to discharge his firearm.

5 To my mind the fact that there does not seem to have been a high level of antagonism between the applicant and the person toward whom he fired increases the gravity of the applicant’s offence. I do not believe it points to disadvantages suffered by the applicant which diminish the seriousness of the offence or require a more lenient sentence.

6 There are many people in the community who may legitimately carry firearms and, regrettably, others who carry them without lawful excuse. The discharge of a firearm at any time may be a serious danger to others. When, without legitimate reason, a firearm is discharged in a public place a sentence must be imposed which sends a message to all who carry firearms that their illegitimate use will bring a heavy penalty, unless other circumstances dictate a different outcome.

7 The review of previous decisions, which Hulme J has undertaken, confirms my view that no lesser penalty than that which was imposed by the sentencing judge was appropriate.

8 Although I would grant leave to appeal I would dismiss the appeal.

9 HULME J: On 26 October 2005, the above named Applicant for leave to appeal against sentence pleaded guilty to a charge that:-

“On or about 14 February 2005… (he) did fire a firearm in a manner likely to endanger the safety of another person namely Glen Vaughan.”

10 On 23 May 2006 Judge Sorby sentenced the Applicant to imprisonment for a non-parole period of 18 months commencing on 23 May 2006 together with a further period “of parole” of 12 months commencing on 23 November 2007. His Honour recommended the Applicant’s release at the conclusion of the non-parole period. In arriving at the sentence he imposed, Judge Sorby allowed the Applicant a discount of 10% for his plea, it being clear that the plea was only entered on the morning appointed for the commencement of the Applicant’s trial.

11 The offence was one arising under Section 93G of the Crimes Act and rendered the Applicant liable to imprisonment for 10 years. So far as is presently relevant, Section 93G provides:-

(1) Any person who
(a) possesses a loaded firearm or loaded spear gun:
(i) in a public place, or
(ii) in any other place so as to endanger the life of any other person, or
(b) fires a firearm or spear gun in or near a public place, or
(c) carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person,
is liable to imprisonment for 10 years.

12 The circumstances of the offence were the subject of a statement of agreed facts (apart from two paragraphs which while not agreed initially seem to have been later, which Judge Sorby regarded as irrelevant, and which, apart possibly from the statement contained therein that the maximum range of the bullets likely to have been used was 1341 metres, do not influence the outcome of this appeal).

13 The Applicant was a security guard and licensed to possess weapons. On the evening of 13 February 2004 he was working pursuant to his employment. He seems to have absented himself for a time from his work and attended shortly after midnight at the premises of a female acquaintance where there was a party in progress. He told persons inside the premises to leave, an argument broke out between the Applicant and Mr Vaughan which extended to each pushing and throwing punches at the other. The fight moved outside, then ceased. Mr Vaughan backed away from the Applicant who continued to try to advance towards him while being restrained by others. There was a short lull and the Applicant went back towards the house.

14 Mr Vaughan ran off down the street. The Applicant followed, stopped in the middle of the road and using both hands fired his .45 Glock semi automatic pistol once in the direction of Mr Vaughan who was then some 70 metres away. He did not intend to hit Mr Vaughan but did intend the bullet to pass near him and did intend to frighten Mr Vaughan.

15 Sometime later the police took possession of the Applicant’s firearms. In the Agreed Facts it was said that the Applicant did not intend reclaiming the weapons or to oppose an application for their forfeiture.

16 The Applicant was born in March 1979 and had, for the purposes of the proceedings before Judge Sorby, no criminal record of any significance. He had been employed as a security guard for some 5 years prior to the offence. Psychiatric and psychological reports were tendered but because their contents formed a major basis for the appeal it is convenient to defer more detailed reference to them.

17 The grounds of appeal are:-

1. The learned trial judge erroneously elevated the objective seriousness of the offence by reference to:
(a) significant disregard for the safety of the public at the time that the Applicant fired the gun and/or
(b) the Applicant shooting “at” the victim.
2. The learned trial judge erred in failing to take into account matters personal to the Respondent and relevant to the proper exercise of the sentence discretion (sic).
3. The Judge erred in his assessment of circumstances of the Applicant’s case such that a lesser sentence was warranted in law: Section 6(3).

Ground 1

18 In support of this ground, Counsel drew attention to passages in Judge Sorby’s remarks on evidence wherein his Honour said:-

“The facts are objectively serious and reveal a significant disregard for safety of the public and in particular Mr Vaughan. … There is a clear need for members of the public to be deterred from discharging firearms in a public street especially in circumstances where there is a danger to the safety of another person.”

19 Later, his Honour observed “In aggravation there are no specific factors under s21A”.

20 Counsel also relied on statements by his Honour that the Applicant had aimed and fired his firearm “at the victim”.

21 I do not regard his Honour’s reference to aiming or firing the weapon “at the victim” as of any relevant significance. It is clear from remarks made during the sentencing proceedings and in the portion of the remarks on sentence where the expression “at the victim” appears that his Honour was fully seized of the true position. Indeed, in the short passage where the words “at the victim” appear twice, his Honour recounts that part of the Agreed Facts as asserts that the Applicant “did not intend to shoot the victim but to frighten him.”

22 So far as the first of the complaints being dealt with is concerned, it is appropriate to refer further to some of the evidence and to events during the sentencing proceedings. The evidence was that not far beyond Mr Vaughan at the time the shot was fired, there was a public park. The width of the public park was not the subject of precise evidence although from a street map tendered it is possible to say that the width was probably of the order of 6 to 10 house allotments before a part of it that seems to have been devoted to a public swimming pool. Beyond that was a built-up area. The section of the park nearest to Mr Vaughan seems to have been fairly heavily treed.

23 The range of the bullet was such that, unobstructed, it could readily have traversed the park and part of the built up area beyond. However, photographs of the treed area lead me to think it unlikely that the bullet’s travel would have been unobstructed. Those photographs also lead me to think that people were unlikely to have been in that area of the park after midnight. Nevertheless, the fact remains that there was some unquantifiable risk of a member of the public being struck by the bullet.

24 On the first day the proceedings were before his Honour, the Crown was contending that there was an aggravating factor under s21A because the Applicant’s actions showed indifference to public safety. Counsel then appearing for the Applicant seemed to agree that was a possible conclusion. However on the second day some 6 weeks later, following it appears some consideration of decisions of this Court, counsel agreed that there were no s21A aggravating factors. His Honour indicated that he also had formed the view that there were no “specific aggravating factors” under s21A.

25 The s21A referred to is of course s21A(2)(i) of the Crimes (Sentencing Procedure) Act, which lists as an aggravating factor that a sentencing court is required to take into account, that “the offence was committed without regard for public safety”, although the sub-section also goes on to say that a court is not to have additional regard to any such factor if it is an element of the offence.

26 Although the terms of s93G of the Crimes Act are such that the charge against the Applicant could have referred to disregard of the safety of persons generally, or the public, the charge was not so formulated. Hence disregard of public safety was a matter which s21A(2) permitted, indeed required, to be taken into account if it seemed to have occurred. In my view, counsel and his Honour were in error in their discussion of the topic on the second day of the sentencing proceedings and his Honour was in error in his remarks on sentence when he said that there were no “specific aggravating factors”. It follows that there was no error in his Honour’s statement that “The facts … reveal a significant disregard for safety of the public and in particular Mr Vaughan”.

27 Accordingly, both aspects of this ground of appeal fail.

Grounds 2 and 3

28 Under these grounds there have been raised on behalf of the Applicant a disparate series of matters and it is convenient to consider the grounds together.

29 Attention was drawn to the fact that the Applicant was of good character and aged 24 at the time of the offence and it was submitted that these were matters relevant to sentence. His Honour referred to both of these matters and, unless it be in the length of the sentence itself, there is nothing to indicate the matters were not given their appropriate weight. The appropriateness of the length of the sentence may be deferred until later in these reasons.

30 Reliance was also placed on the remorse said to be inherent in the Applicant’s plea and his Honour’s findings that the Applicant was unlikely to re-offend, had good prospects of rehabilitation and was a man of good character prior to his offence. These matters helped to distinguish the case so it was submitted from others involving a breach of Section 93G such as R v Cicekdag (2004) 150 A Crim R 299; R v Cahill [2004] NSWCCA 451 and R v Barakat [2005] NSWCCA 143.

31 It was pointed out that quite separately from the imposition of any penalty of the Applicant, protection of the public had been achieved by him being deprived of his weapons and the Firearms Licence he had held and that he had already suffered a form of punishment in the loss of his livelihood and this in circumstances where his intellectual and physical state already reduced his chances of other employment.

32 It may be accepted that the factors mentioned in the last two paragraphs do argue for a lesser rather than a greater penalty although they also are but some of the totality of matters that have to be taken into account. Judge Sorby did not refer to those in the immediately preceding paragraph and the only inference open is that he did not give them any weight. He should have done so.

33 A fourth submission was that his Honour should have taken into account that the charge was one which could have been finalised in the Local Court, in this connection reference being made to Wise v R [2006] NSWCCA 264, R v El Masri [2005] NSWCCA 167. Certainly the factual situation behind this submission exists but the authorities mentioned demonstrate that whether the matter is one of significance depends very much on the facts of the individual case. Here the Applicant’s offending was sufficiently serious that it would have been inappropriate for his offence to have been dealt with in the Local Court. In these circumstance Judge Sorby’s failure to mention the possibility is immaterial.

34 Another matter referred to was undisputed evidence that the Applicant suffered some physical disabilities, it being submitted that these matters were relevant to any determination of the appropriate length of a custodial sentence but they had not been referred to in the remarks on sentence. Putting aside whatever may have been apparent on seeing the Applicant in the dock, such evidence as there was on these matters was contained in the reports of Dr Nielssen and Mr Champion.

35 The Applicant was described as having an inherited bone condition, physically unusual, short in stature with abnormally short arms, and narrow in the shoulders. His mobility was somewhat limited. He walked with a limp and his gait was referred to as somewhat rocking. He was described as tending to be very wide eyed, and said to have some reduced visual acuity in his right eyed, including what might be termed a key-hole pupil. He was said to have a need to take pain-relieving medication regularly. This evidence does not go far enough to lead to the conclusion that his physical disabilities place the Applicant in a particularly vulnerable situation compared with offenders generally or even a significant proportion of the smaller or weaker of them or as liable to make his time in prison unusually onerous. These physical matters are hence of no weight.

36 Much reliance was placed on Mr Champion’s and Dr Nielssen’s assessments of the Applicant’s mental state. Between them these two recorded a history of substantial developmental delay, difficulty in learning and reading and of the Applicant having been placed in a special reading class. On the other hand it is recorded that he completed year 10 at school. Mr Champion administered all standard subtests of the Wechsler Adult Intelligence Scale. He reported variation in the results, that 2 tests placed the Applicant in the “low average range (9th percentile)” and in the “borderline disabled range (8th percentile)” but concluded that “in general terms I would place his day to day functioning in the lowest 20% perhaps”. Mr Champion concluded that the Applicant was not unfit on the basis of intellectual capacity although he referred to the Applicant having “an uneven pattern of cognitive development”, and that “’intelligence’ is an issue to be given consideration in terms of the question of mitigation, given that Mr Haidar demonstrates obvious deficits in reasoning and judgment”. Mr Champion observed that if the testing results were indicative of the Applicant’s longer term functioning they suggested that he was not well suited to the form of employment he previously had.

37 Mr Champion also said that the Applicant struggled at times to understand what was being said to him and, having interviewed the Applicant at his home observed that “I was struck by the level of concern each family member expressed for Mr Haidar, it being clear to me that he had always been seen as different or at least needing support and even protection”. He anticipated that the Applicant would not cope well with incarceration, may experience a deterioration in his mental state, and certainly a deterioration in his level of depression, with the risk of self-harm not being something which can be ignored”.

38 Dr Nielssen reported that the Applicant was slow to recognise the explanation given to him regarding the purpose of the interview, seemed to have difficulty in grasping other abstract concepts such as the interpretation of his reported symptoms and that his speech was simplistic in form in a way that was consistent with low intelligence. Referring to the history of delayed development (which he characterised as “mild”) and Mr Champion’s testing, Dr Neilssen said that these were consistent with the Applicant’s presentation at interview and “the pattern of Mr Haidar’s disability is likely to have resulted in below average reasoning, information processing and impulse control”.

39 The 2 experts also directed attention to the circumstances of the commission of the offence.

40 According to Mr Champion, the Applicant initially denied being subject to the more overt symptoms of psychosis; then there was “a vague account” of hearing a male voice over the past 2-3 years or so and difficulty in pinning down the asserted frequency with which this voice was said to be heard, what it was the voice said and whether the “voice” was simply the Applicant’s own thoughts. Mr Champion expressed the view there was “a need for a psychiatric appraisal to further examine the possibility of psychosis”.

41 Dr Nielssen reported that the Applicant had given a spontaneous account of fairly typical hallucinations of voices; that when asked why he had discharged the gun, the Applicant said he did not know why but said “it was like I heard a weird noise in the back of my head… like a voice saying “shoot the gun”. Dr Nielssen described the history he was given as including the onset of typical symptoms of psychotic illness in the year before the offence and diagnosed a “possible onset of psychiatric illness”. He said that:-

“The pattern of symptoms reported by Mr Haidar were fairly typical of the onset of mental illness, although I note that Mr Champion elicited a slightly different pattern of symptoms …He did not offer a delusional explanation for his symptoms and his offence was not thought to be prompted by delusional beliefs. However, impulsive and irrational behaviour is often observed during the early phase of mental illness and changes in brain function associated with the onset of mental illness may nave been a factor in Mr Haider’s offending.”

42 In his remarks on sentence Judge Sorby quoted from Dr Nielssen’s report at some length, including the passage I have just set out, referred to evidence from the Applicant’s employer at the time of his offence that other employees had noted the Applicant to be of ”average ability in his work” and concluded:-

“There is no evidence before me that at the time of the offence that the prisoner was suffering from mental illness such that he did not know what he was doing or the difference between right and wrong such would less the importance of general deterrence in this matter. (sic)”

43 Apart from recording that there was no report from the doctor at the Mental Health Service that the Applicant was attending, his Honour made no other significant reference to the Applicant’s mental state. It is however appropriate to record that during the second day of the sentencing proceedings there was debate about the significance of the reports of Dr Nielssen and Mr Champion. His Honour remarked that Dr Nielssen’s diagnosis was vague but that he was prepared to grant a further adjournment to enable the obtaining of a further report, although his Honour also indicated he saw any such report as going to the topic of rehabilitation and special circumstances. His Honour observed that he was not sure any doctor could give an opinion about the Applicant’s mental state at the time of the offence. (In fact, since his offending the Applicant had had a severe motorbike accident and there was an issue as to the extent to which any deficiencies he manifested thereafter were present at the time of this offending.)

44 An adjournment for some 6 weeks was granted. No further report as to the Applicant’s mental state was tendered, counsel asking his Honour to accept from the bar table that the treating psychiatrist was not closer than Dr Nielssen as to the issue of mental illness. In light of the evidence, there is no basis upon which Judge Sorby’s conclusion in the terms I have quoted as to the absence of evidence of mental illness at the time of offending can be successfully challenged.

45 However, it was submitted on behalf of the Applicant that that was not the end of the relevance of the psychological and psychiatric evidence and Judge Sorby should have, but did not, consider the matter more widely. As I have indicated, his Honour’s remarks do not indicate any wider consideration of the topic than I have mentioned.

46 Reliance was placed on R v Israil [2002] NSWCCA 255 at [21-26] and R v Matthews [2004] NSWCCA 112. In the last mentioned case, Wood CJ at CL, with whom Hislop J agreed said:-

“20 It is the case that the presence of a mental disorder, or abnormality, including a significant defect in intellectual functioning, is of relevance, both for an assessment of the extent of an offender’s objective criminality, and for a determination as to whether or not the case is one that calls for a particular measure of general or specific deterrence. The principles are well known.
21 …
22 As I explained in Regina v Henry (1999) 46 NSWLR 346 (para 254) the reason for the adoption of the principle which was stated in R v Letteri NSWCCA 18 March 1993, and adopted in R v Engert (1995) 84 A Crim R 67, to the effect that less weight should be given to general deterrence in the case of an offender suffering from a mental disorder or abnormality:
"lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice."


23 Similar considerations apply in relation to personal deterrence where the disability or limited intellectual functioning is such that the offender may not fully appreciate, or understand, the nature of his or her offending, or of the message, which the sentence is expected to convey.

24 …

25 However, as was made clear in Regina v Elchami NSWCCA 15 December 1995, and also in Regina v Wright (1997) 93 A Crim R 48, and in Regina v Bus NSWCCA 3 November 1995, these principles have a lesser relevance for an offender with a low level of intellectual functioning, or a developmental disorder, where, notwithstanding that incapacity or disorder, he or she has a clear knowledge of what is being done, an awareness of its wrongness, and a capacity for impulse control.

26 Accordingly, each case will depend upon the nature and degree of the impairment, the extent of its contribution to the offence, and whether or not the sentence can be seen, in the particular circumstances, of that case to have a deterrent value, either specifically or generally.

27 An individual assessment is necessary, and a bare invocation of the presence, in an offender, of a low level of intellectual functioning or mental disorder, as a circumstance requiring moderation in sentence, is likely to be both misleading and unhelpful.”

47 Such remarks, and others to like effect in numerous previous cases make it clear that, if the evidence justified it, his Honour should have addressed the Applicant’s mental state more widely than simply saying, “There is no evidence … that the prisoner was suffering from mental illness such that he did not know what he was doing or the difference between right and wrong such would less the importance of general deterrence in this matter. (sic)”. (Although it is not crucial to my decision, I suspect the last mentioned transcribed words should have been, “as would lessen the importance of general deterrence … .”)

48 The evidence did justify a wider consideration of the topic, particularly as, despite a very unreceptive audience, counsel drew his Honour’s attention to both topics – mental illness and mental disability. While some of the remarks of Mr Champion and Dr Nielssen, e.g. to the effect that the Applicant’s day to day functioning was in the lowest 20%, and that “the pattern of Mr Haidar’s disability is likely to have resulted in below average reasoning, information processing and impulse control” (my emphasis) are not sufficient to lead to the conclusion that any mental disability from which the Applicant suffers sufficiently distinguishes him from the general population to justify special allowance on that account, the totality of the picture they paint does so. There is e.g. Mr Champion’s reference to “obvious defects in reasoning and judgment” and Dr Neilssen’s observation concerning the Applicant’s difficulties in understanding the purpose of the interview and abstract concepts. Furthermore, and although on its own it would not go far, there is Mr Champion’s statement to the effect that he “was struck by the level of concern each family member expressed for Mr Haidar, it being clear to me that he had always been seen as different or at least needing support and even protection”.

49 The circumstances of the offence provide further support for the description of the Applicant’s reasoning, information processing or impulse control at the time. There was nothing to suggest any great violence in the dispute between the Applicant and his victim, or significant provocation that may have inspired the oddity of a shot intended to only frighten the departing victim and fired in or near the presence of those who had sought to restrain the Applicant and who, with the assistance of the female acquaintance holding the party, could clearly identify the Applicant.

50 Insofar as one may have regard to his Honour’s remarks during argument, he seems to have been impressed with the fact that the Applicant had achieved accreditation as a security guard in each of the previous 5 years. However there was no evidence of what such accreditation involved or of what the “average” standard of which the Applicant’s employer spoke entailed.

51 Of course, as the passage cited from R v Matthews makes clear, his Honour’s error in not addressing these further issues is not the end of the matter. The question remains as to their significance. To my mind they are entitled to some, albeit a limited degree of weight. Variation between offenders both in nature and degree are of such infinite variety that the Court cannot attempt to weigh them all or indeed attempt to specify with precision any dividing line between circumstances attracting consideration or leniency and those that do not. However, enough appears in this case in my mind to ameliorate to some degree the Applicant’s criminality and separately, the weight to be given to many of the purposes of punishment.

52 I turn then to the length of the sentence imposed. Relying on s6(3) of the Criminal Appeal Act, the Crown submitted that no lesser sentence was warranted in law. That sentence was, as I have indicated, one for a total term of 2½ years, including a non-parole period of 18 months.

53 The Judicial Commission statistics are of limited use. They cover all offences under the subsection including some offences inherently less serious than the Applicant’s and some inherently more serious; they show that of 32 offenders, 19 were sentenced to full time custody for head sentences varying between 2 and 6 years and with non-parole periods varying between 6 months and 4 years. The sentence imposed on the Applicant was thus among the lighter of the full time custodial sentences albeit heavier than the non-custodial ones.

54 A consideration of some 14 cases including R v Cicekdag, R v Cahill, and R v Barakat mentioned above has also proved largely unhelpful, such were the differences between the circumstances of those cases and those here. I will mention but 2. In R v Cahill this Court reduced to a non-parole period of 2 years and 3 months and an additional term of 21 months a sentence imposed on an offender who had fired a shotgun so that some pellets or gravel propelled by such pellets struck a vehicle some 70 metres away and who pleaded guilty to a charge of firing a firearm in a manner likely to injure a person. It seems to have been accepted that at no time was the weapon aimed at the victim although the Court remarked that there was always the danger of a ricochet. There had earlier been an unsuccessful attempt to fire after which the victim drove away. The offender was on a bond at the time, a fact that was expressly described as an aggravating factor. The sentence resulted in the offender’s first time in custody, his prospects of rehabilitation were good and he was regarded as most unlikely to re-offend. It was anticipated that he would have to spend his sentence in some form of protection.

55 R v Cahill contains the complicating factor that the offender was sentenced to an entirely concurrent term including a non-parole period of 18 months and an additional term of 15 months for an offence, regarded as above the midrange and serious, of possessing a firearm contrary to s7(1) of the Firearms Act. As a discrete offence one would have expected there to be some degree of accumulation and although the judges in R v Cahill can be expected to have been aware of R v Pearce (1998) 194 CLR 610, the complete concurrency makes one wonder whether the punishment for the s93G offence included some component for the other offence.

56 In R v Cicekdag [2004] NSWCCA 357 this Court allowed a Crown Appeal and increased from 26 months including a non-parole period of 12 months to 3 years including a non-parole period of 2 years a sentence of imprisonment imposed on an offender who had pleaded guilty to firing a firearm in a public place contrary to the provisions of s93G(1)(b) of the Crimes Act. The Court emphasised that the sentence it imposed “should be less than should have been imposed and in any event towards the lower end of the available range”. The meaning of those remarks is not entirely clear but it must be noted that there were a number of factors bearing on that sentence that indicate Mr Cicekdag was in a far worse position than the Applicant here.

57 In determining the sentence to which reference has been made, the Court took into account four other offences, driving while unlicensed, possessing an unregistered firearm and 2 offences of assault occasioning actual bodily harm which were regarded as separate acts of criminality. One of the victims of these assaults was kicked in the head and the other puched in the face and lost consciousness. Cicekdag had a small but significant criminal record, he was the subject of unfavourable Probation and Parole reports, he was on conditional liberty at the time, and there were no indications of contrition. A number of shots had been fired, essentially aimed at the ground although one person was hit in the knee, this last mentioned event leading to a further charge of malicious wounding. The Court said that, particularly as more than one shot was fired, general deterrence was of considerable importance.

58 Again the sentences on the 2 matters charged were made concurrent although it is clear that this was done with full thought being given to R v Pearce and in the exercise of the Court’s discretion in a Crown appeal.

59 This Court has eschewed arguments based simply on one or a few similar cases. In any event, I regard the sentence in R v Cicekdag as so lenient as to be of no use for comparison purposes and that in R v Cahill subject to the concern I have noted.

60 Approaching the matter from first principles, I would not interfere with the sentence imposed by Judge Sorby were it not for the elements of protection and punishment in the Applicant’s loss of his firearms and security licences and for his mental condition all of which factors were not properly considered by his Honour. The weight I am disposed to give to the latter and Mr Champion’s view to the effect that the Applicant might not be – I would say was not - well suited to the form of employment he previously had leads to the conclusion that weight should not be given to both the mental condition and the loss of his security licence. However I do take the view that the amelioration of the Applicant’s criminality and separately, the weight to be given to many of the purposes of punishment arising from his mental condition should lead to a lesser punishment than Judge Sorby imposed.

61 Against that possibility, there were read on the appeal affidavits from the Applicant and his brother. They indicate that the Applicant is experiencing some hardships in gaol compared with many of the gaol population, although in the scheme of things I do not regard them as unusually great. The affidavit from the Applicant’s brother to some degree fleshes out the picture I have derived from the psychological and psychiatric reports.

62 Notwithstanding my view that the sentence on the Applicant should be reduced, I am not disposed to acquiesce in the submission that his non-parole period should be concluded now. Judge Sorby did find special circumstances and there was no challenge to that finding in the appeal. I would propose the following orders as appropriately meeting the merits of the case:-

(i) Grant leave to appeal;
(ii) Allow the appeal;
(iii) Quash the sentence imposed by Judge Sorby on 23 May 2006;
(iv) In lieu thereof sentence the Applicant to imprisonment for a non-parole period of 1 year commencing on 23 May 2006 together with an additional term of 1 year commencing on 23 May 2007;
(v) Direct the release of the Applicant to parole at the conclusion of the non-parole period;
(vi) Record as the date upon which it appears to the Court that the Applicant shall become eligible for release on parole 23 May 2007.

63 HISLOP J: I agree with McClellan CJ at CL.

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