Hamdan v The King

[2023] NSWCCA 80

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hamdan v R [2023] NSWCCA 80

Hearing dates:

22 February 2023

Decision date:

12 April 2023

Before:

Price J at [1]
Wilson J at [4]
Dhanji J at [67]

Decision:

1. An extension of time in which to bring an application for leave to appeal is refused

Catchwords:

CRIME – SENTENCE – application for leave to appeal out of time against sentence – asserted “incompetence carelessness or oversight” of counsel – asserted failure to raise evidence of assistance to law enforcement – question of discount pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – asserted failure of counsel to make a submission to the sentencing court referring to s 23

Legislation Cited:

Crimes Act1900 (NSW)

Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6

Droudis v R [2020] NSWCCA 322

Ehrlich v R (2012) 219 A Crim R 415; [2012] NSWCCA 38

Grant v R [2014] NSWCCA 67

Hamzy v R [2014] NSWCCA 223

KWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Lehn v R [2016] NSWCCA 255

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Puan v R [2009] NSWCCA 194

R v Birks (1990) 19 NSWLR 677

R v Gallagher (1991) 23 NSWLR 220

R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142

Raymond John Munro v R [2006] NSWCCA 350

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Tsiakas v R [2015] NSWCCA 187

Zreika v R [2012] NSWCCA 44

Category:

Principal judgment

Parties:

Omar Hamdan (Applicant)
Rex (Respondent)

Representation:

Counsel:
P Johnson (Applicant)
J Styles (Respondent)

Solicitors:
Abbas & Co (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/58582

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 May 2020

Before:

Lerve DCJ

File Number(s):

2019/58582

JUDGMENT

1. PRICE J: I have had the benefit of reading the judgments of Wilson J and Dhanji J. I agree with their Honours that there has been no miscarriage of justice occasioned by the applicant’s counsel in failing to raise s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the C(SP) Act”) in submissions to the sentencing judge.

2. I note there is a disagreement as to “double counting” between their Honours. However, it is unnecessary for me to express a view on this issue.

3. Accordingly, I agree with the orders proposed by Wilson J.

4. WILSON J: The applicant, Omar Hamdan, seeks both an extension of time in which to appeal and leave to appeal against the sentence imposed upon him in the District Court at Wagga Wagga on 15 May 2020. The sentence was an aggregate term of imprisonment of 6 years and 8 months to date from 21 February 2019, with a non-parole period (“NPP”) of 4 years and 6 months, which reflected three offences, as follows:

Sequence Number	Offence	Maximum Penalty	Indicated Sentence
2	Fire firearm at dwelling with reckless disregard for safety of person s 93GA(1) Crimes Act 1900 (NSW)	14 years imprisonment Standard NPP: 5 years	4 years and 6 months imprisonment NPP: 3 years
3	Fire firearm in or near public place s 93G(1)(b) Crimes Act 1900 (NSW)	10 years imprisonment	3 years imprisonment
4	Assault occasioning actual bodily harm in company s 59(2) Crimes Act 1900 (NSW)	7 years imprisonment	2 years and 3 months imprisonment

5. The applicant advances one proposed ground of appeal:

“A miscarriage of justice was occasioned because of the incompetence, carelessness or oversight of the applicant’s Counsel at sentence in failing to raise that there was evidence of assistance to law enforcement authorities, pursuant to s23 of the Crimes (Sentencing Procedure) Act 1999 entitling the applicant to a consideration of a discount pursuant to s23(4) for that assistance”.

6. As the time for filing any application had long passed by the date on which the necessary documentation was filed, 31 October 2022, an extension of time is required. The question of whether to grant additional time largely turns on the merits of the proposed appeal, and thus will be considered last.

The Proceedings in the District Court

7. The applicant entered pleas of guilty to the charges in the Local Court on 8 January 2020 and his matter was committed to the District Court for sentence. A date for the hearing of sentence proceedings was originally fixed on 6 April 2020, but the matter was not able to proceed, due to a need to confirm information concerning the recovery of a firearm believed to have been used by the applicant to commit his crimes. In seeking an adjournment then counsel for the applicant told the presiding judge, his Honour Judge Lerve, that information concerning the firearm “may impact on a s 23 issue”.

8. It is the recovery of the firearm that is central to the present application.

9. The matter was adjourned and came before his Honour again on 15 May 2020.

The Crown Case

10. The Crown tendered a statement of facts that was not disputed by the applicant, and which his Honour accepted. Sequences 3 and 4, offences of firing a firearm in a public place, and assault occasioning actual bodily harm in company (“AOABH”), occurred on 21 February 2019 in a public residential street in Young. The victim of these crimes, Mr Field, was sitting in his car, which was parked in the street outside the home of a friend. He saw a white van driving up the street in his direction and watched as the van came to a stop in the street adjacent to his car. Mr Field saw that the applicant, who was known to him, was driving the van. Another male Mr Field was familiar with was in the passenger seat. Mr Field saw the applicant move his hand up from the area of his lap and observed that he was holding a handgun. The applicant cocked the gun and, saying something to Mr Field, he pulled the trigger. Mr Field heard the gun discharge. He saw the applicant, who was looking directly at Mr Field throughout, discharge the gun at him a further five times (the firearm offence). One of the shots struck Mr Field, grazing an elbow (the AOABH offence).

11. Mr Field drove off and went directly to the Police Station at Young, where he complained that the applicant had shot at him and his car. He went with police officers to the street outside the Police Station and showed his car to the officer. At that time, a witness to the shooting, who also knew the applicant, approached the officers and said he had seen the applicant “[shooting] the car up”, from a white van. On inspecting the car, the police officers observed two bullet holes in the front windscreen and one on the passenger side door frame. When officers attended the location of the shooting, a number of shell casings were found on the ground.

12. The applicant was seen by police soon after still driving the white van in Young. He and his co-offender, a juvenile, were both arrested. The firearm was not recovered.

13. On investigating the shooting police officers were advised of another shooting incident that had occurred earlier that same day when the applicant shot into the house in which Mr Field lived, in another residential street in Young, this being the offence reflected by the charge of firing a firearm at a dwelling. The applicant had driven to the address in a blue station wagon in company with the juvenile co-offender and discharged a firearm into Mr Field’s house. A resident of the street had heard 5 or 6 bangs and, on looking from her window, she saw two males in a blue station wagon. Two other residents of the street heard a number of gunshots fired in quick succession at around 1:15pm that day, and saw a blue car with two occupants driving slowly down the street. Another witness heard five gunshots fired quickly one after the other and heard a car, which he saw to be a blue station wagon, take off quickly. The witness saw that the driver was male, and of Lebanese appearance. A number of residents of the street heard gunshots at a time between 1 and 2pm.

14. On examining the scene police found a bullet hole in the front window of Mr Field’s house. A blue vehicle fitting the description of that used by the applicant at the time was seized by police from his home.

15. The applicant refused to be interviewed by police.

16. The Crown tendered the applicant’s criminal history. He had been previously convicted of offences of having goods in custody, affray, and custodian not providing driver details. Bonds and fines had been variously imposed, with the bonds later called up.

17. A statement from one of the investigating police was also placed before the sentencing court and became Exhibit A (“Ex A”). Detective Senior Constable (“DSC”) Hines stated that the handgun used by the applicant had not been found on his arrest, or thereafter. In March 2020 the applicant’s solicitor, Mr Abbas, contacted the police and advised them that the applicant wished to disclose the location of the firearm. During a further discussion in April 2020 Mr Abbas gave the police exact details of the location of the weapon. Soon after speaking with Mr Abbas, DSC Hines went to the location specified, which was on or immediately adjacent to the applicant’s property, and found a small black pistol that had been wrapped in cloth and secreted inside an old washing machine that was lying on the ground behind a shed. Its magazine was found to be fully loaded. The firearm was secured.

18. A Sentencing Assessment Report (“SAR”) dated 12 May 2020 had been prepared. The applicant told the author of the report that, prior to going into custody with respect to these matters, he had lived with and cared for his father on the family farm outside Young. He was able to return home on release from custody. The applicant said that he had completed Year 12 at school, and then undertaken a traineeship with a major bank. He had worked at the bank for three years thereafter, before leaving his employment to assist with his father’s care and the management of the family farm and market stall. He expected to work on the farm when released from custody.

19. Of his offending conduct the applicant said that he had become frustrated, stressed, and angry in connection with the management of the farm and had acted impulsively and aggressively as a consequence. The source of the frustration and anger was not stated. The applicant said that his thinking had been “blurred” at the time and he now regretted his behaviour. He expressed willingness to participate in any programmes as directed by Community Corrections.

20. The applicant was assessed by the author of the SAR to be at low risk of re-offending.

The Subjective Case

21. The applicant, who was aged 22 years at the time of sentence, did not give evidence. He tendered a document he had written which included personal information and an apology to Mr Field. The applicant stated that he had begun a bank traineeship part time whilst still at school, completing the programme whilst undertaking Years 11 and 12 at school. He had given up his employment with the bank because of the ill health of his parents and decided to support the family business. He had purchased a neighbouring farm himself, intending to expand the business. His family had taken on the mortgage payments for his farm following his arrest and was under some financial stress as a consequence.

22. On entering custody, the applicant said that he took up employment and worked hard. He has also undertaken any vocational courses available to him and asked to undertake anger management programmes when possible.

23. A section within the document was headed “Apology Letter to Victim” and was directed to Mr Field, to whom the applicant said he was sorry. The applicant said that he was disgusted by and remorseful for his conduct.

24. The applicant also tendered a letter from his father, who referred to the health complications that had left him heavily reliant upon the applicant’s assistance in the conduct of the family farm and produce stall. He described the applicant as a committed and hardworking individual who had himself bought a farm prior to his incarceration to expand the family business. Maintaining the mortgage repayments for the applicant during his time in prison had left Mr Hamdan under financial stress.

25. Mr Hamdan said that the applicant’s experience of custody had had a profound impact upon him, and the applicant often spoke of his regret for his actions, and his sorrow for those affected by what he had done. He was intent upon returning to work at the farm and bettering his life.

The Submissions

26. The applicant relied upon a written outline of submissions (prepared prior to the recovery of the firearm) and his counsel addressed the sentencing court orally on 15 May 2020. He referred to the discharge of 6 bullets during the shooting at Mr Field in his car, and the discharge of between 3 and 6 bullets during the shooting at the house. Counsel argued that the court would accept that the applicant’s intention in so acting was to frighten Mr Field rather than to injure him or anyone else, but he conceded the dangerousness of this conduct. As to the AOABH offence, the injury was observed to be of a minor character, although its infliction by a firearm was conceded to add to the gravity of the crime. The applicant contended that there was considerable commonality between the three offences, which might be regarded as one course of conduct, calling for a degree of concurrency of sentence. The applicant’s youth, minimal criminal history, plea of guilty and remorse were all noted to be significant features that called for amelioration of sentence.

27. In oral address, counsel added:

“[…] in light of the surrender or the forfeiture of the subject firearm that was used in the commission of the three offences, your Honour, that would demonstrate in my respectful submission contriteness, genuine remorse and also it plainly indicates that a firearm that has been taken out of the public menu, if I could put it that way, it would certainly indicate that my client has done all he can do in regards to trying to make amends for all of the crimes that he has committed”.

28. The sentencing court was asked to find that the applicant had been a “model prisoner” and had good future prospects. A finding of special circumstances in the applicant’s favour pursuant to s 44(2) of the C(SP) Act was submitted to be appropriate.

29. The Crown emphasised the seriousness of the offences, which imported a degree of planning, and involved the discharge of between 6 and 12 bullets in public places in the town of Young, conduct which was highly dangerous to others. Some accumulation of sentence was said to be required. The Crown took no issue with the submissions directed to the applicant’s youth and remorse, or his limited criminal history, and did not dispute that a finding of special circumstances was open to the court.

The Remarks on Sentence

30. In his ex tempore remarks the sentencing judge set out the facts of the matter from the Crown statement of them and noted the offences and relevant maximum penalties. His Honour referred to the pleas of guilty entered prior to committal and observed that the sentences imposed would be reduced by 25% to recognise the early pleas. With respect to the shooting offences the sentencing judge noted that more than one shot had been fired in relation to sequence 2, with 6 shots fired with respect to sequence 4, and the weapon used was a pistol, that being a firearm that was easily concealed. The public places in which each shooting occurred were residential streets, and the applicant had been in company on each occasion. His Honour characterised the offence contrary to s 93GA of the Crimes Act 1900 (NSW) as “well within the mid-range of seriousness”, whilst the s 93G offence was “in the upper end of the mid-range of seriousness”. The offence of AOABH, whilst it did not result in any serious harm, was still an offence “at the upper end of the mid-range” because a firearm had been used to inflict injury.

31. His Honour was prepared to allow the applicant “a small degree of leniency” given the relatively minor nature of his criminal history. His good conduct since arrest was observed to be a feature favourable to the applicant.

32. With respect to the firearm the sentencing judge said:

“Significantly, exhibit A also contains a statement from Detective Constable Hines which indicates that the firearm that was involved in the offending has been recovered. That is a significant matter, and that, taken into account with the expressions of remorse by the offender in his letter to me, would - in fact, does - entitle the offender to a finding on the balance of probabilities that he is remorseful. I hasten to add, but for the offender's actions and the recovery of the firearm, and his cooperation with the police in the recovery of the firearm, I would be unlikely to find remorse”.

33. Having detailed the evidence relied upon in the applicant’s case his Honour concluded that the applicant had good prospects of rehabilitation, although he would require guidance to assist him with anger management issues. It was accepted that the applicant was a hard worker, both in the community and in custody. His Honour was conscious of the adverse impact of the COVID-19 virus upon custodial conditions and indicated that some amelioration of sentence was therefore appropriate.

34. His Honour accepted that special circumstances should be found, referring to the applicant’s age, that he had never before been in custody, and that he required assistance with anger management. Whilst the offences all occurred on the same day, the sentencing judge concluded that some partial accumulation of sentence was required to reflect the separate shootings and differing offending involved. The principle of general deterrence was found to have particular application.

The Application to this Court for Leave to Appeal

35. The applicant contends that there was a miscarriage of justice because of the incompetence or other shortcomings of his then counsel in “failing to raise that there was evidence of assistance to law enforcement authorities”. That complaint does not refer to the failure to tender evidence of assistance to law enforcement authorities, since the matter was adjourned on 6 April 2020 for the very purpose of obtaining such evidence, and the evidence – Ex A - was tendered during the proceedings on sentence on 15 May 2020. The failure to “raise evidence of assistance” refers to an asserted failing in the submissions made to the sentencing court on that aspect of the evidence.

36. The applicant argued before this Court that:

“Counsel ought to have raised with the sentence judge a consideration of s 23, and giving a discrete discount for that assistance. It is not apparent why the utility of the information, not only it’s [sic] genuineness, was not properly addressed by Counsel. It is submitted Counsel’s failure to do so led to a miscarriage of justice, in not raising a relevant subjective matter in mitigation of sentence, separate and additional to any finding of remorse”.

37. The applicant faces a particular burden in making good on this argument, since it is one that rests upon “revision and reformulation” of the case he presented before the sentencing judge. Counsel appearing for the applicant in the District Court argued the case in mitigation as he considered appropriate, consistent with the wide discretion those appearing for accused persons have in presenting their case. That other counsel might have taken a different approach, or made different arguments in mitigation, does not of itself point to error. Appeal proceedings to this Court should not be conducted as if the hearing before the first instance court was a little more than a dress rehearsal for the gala performance.

38. Over a decade on, the principle expressed by Johnson J in Zreika v R [2012] NSWCCA 44, at 81, and endorsed in numerous decisions of this Court since, should be well understood. It is:

“[…] in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made”.

39. Only where some compelling circumstance establishes that the conduct of the case by counsel occasioned a miscarriage of justice will an appellate court intervene. More specifically, to conclude that there was a miscarriage of justice in the context of this case, it would have to be established that the absence of any submission that directly referred to s 23 and the desirability of the sentencing court awarding the applicant a discrete discount on sentence to recognise his assistance, led to the applicant receiving a less favourable sentence than would have been received had the submission been made in those terms. In circumstances where counsel referred to the assistance to authorities in oral submissions, and the sentencing judge took the evidence into account to ameliorate the sentence imposed, that is a burden that cannot be met, for a number of reasons.

40. A ground of appeal that relies upon some defect in the submissions made to a sentencing court is rarely seen, perhaps because the task of establishing that a miscarriage of justice has been occasioned by a flaw in submissions is a difficult one: Puan v R [2009] NSWCCA 194, at [55]; Tsiakas v R [2015] NSWCCA 187, at [44]. A miscarriage of justice must mean that the irregularity complained of occasioned injustice. The burden falls on the applicant to make good that proposition. Necessarily, he must establish that the conduct of his counsel occasioned a material irregularity in the sentence proceedings; and that there is a significant possibility that the irregularity affected the outcome in a way that was adverse to the applicant: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, at [79]; Grant v R [2014] NSWCCA 67, at [52].

41. The application proceeds in circumstances where the applicant is taken to be bound by the conduct of his counsel. The point is one of long standing. In R v Birks (1990) 19 NSWLR 677 at 683 Gleeson CJ said:

"As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.”

42. The point holds good in sentence proceedings as in proceedings at trial: Raymond John Munro v R [2006] NSWCCA 350, at [24].

43. Although not the ultimate question to be answered by the ground of appeal raised by the applicant, that being whether a miscarriage of justice was occasioned by counsel’s conduct, whether that conduct was deficient remains a relevant consideration. Only where there has been some deficiency of sufficient significance to cause a miscarriage will an appellate court intervene. Although not exhaustive, the sort of failure of counsel that can have this result has been described as “egregious”, “extreme”, and even “flagrant incompetence”: see Birks at [685]; TKWJ v The Queen at [29].

44. In Birks, Gleeson CJ set out, at [685], three principles that apply where there is a question of miscarriage of justice based upon the incompetence of counsel:

“1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

45. Having considered the record of the proceedings before the District Court I cannot conclude that there was any incompetence or oversight by counsel with respect to the issue of assistance to authorities. Although there was some suggestion before this Court that counsel then appearing may not have been aware of the provisions of s 23 of the C(SP) Act, counsel’s application for an adjournment of the sentence hearing on 6 April 2020 to obtain evidence relevant to that very feature demonstrates conclusively that he was aware of both the provision and its likely significance on sentence.

46. That counsel well understood the likely significance of the evidence on sentence is borne out by the tender of Ex A to the sentencing court concerning the recovery of the firearm, in the Crown case, as is usual in such instances. The submission made with respect to that evidence further points to counsel’s awareness of the potential importance of the evidence. He contended that the sentencing court should have regard to the evidence concerning the provision of information as to the location of the firearm as evidence of contrition, remorse, the applicant’s desire to make amends and, more widely, on the basis that the weapon had been removed from the public domain. As the applicant submits in this Court, his then counsel did not refer to s 23 of the C(SP) Act in terms, but that is not determinative of the question of incompetence.

47. Section 23 provides:

“23   Power to reduce penalties for assistance provided to law enforcement authorities

(1)  A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2)  In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters—

(a)    (Repealed)

(b)  the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c)  the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d)  the nature and extent of the offender’s assistance or promised assistance,

(e)  the timeliness of the assistance or undertaking to assist,

(f)  any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g)  whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h)  any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i)  whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j)    (Repealed)

(3)  A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

(4)  A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must—

(a)  indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b)  state the penalty that it would otherwise have imposed, and

(c)  where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.

(5)  Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6)  The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.”

48. It was entirely open to counsel appearing for the applicant to point to the operation of s 23 and ask that the sentencing court discount the sentence that was to be imposed by a quantified percentage in recognition of it. That was not, however, the only way of ensuring that the court gave proper attention to the surrender of the firearm. In the circumstances of this matter minds might reasonably differ as to whether it was even the best course to adopt; it cannot, in any event, be said that counsel was incompetent or otherwise failed in his duties because he did not make that discrete submission.

49. As is obvious from s 23(2)(c), (f), (e), (g), (h) and (i), the section is more usually directed to assistance of a more expansive nature than that provided by the applicant. Certainly, the information provided by him as to the whereabouts of the gun he used was capable of qualifying as assistance to the authorities under s 23. A weapon used in the commission of crime was recovered by police, relevant to the investigation of the applicant’s crimes; and it was not thereby available for the commission of any other offences, relevant to the prevention of other offences. Both features are each referred to in s 23(1).

50. Despite that, it is relevant to bear in mind that the applicant did no more than surrender the firearm he had used to commit the offences. This was not assistance that could lead to the detection of any other crime, or the prosecution of other criminals; it could properly be regarded as of limited value and, as both counsel then appearing and the sentencing judge clearly concluded, it was a feature that had the greatest relevance to the question of contrition and remorse.

51. In my assessment the approach that counsel took to the evidence of the surrender of the firearm was one that was well open and not in any way inappropriate or wrong. Nothing about the way in which counsel conducted the case on sentence is capable of establishing his incompetence or other shortcoming.

52. Even if counsel had specifically referred to s 23 in submissions, that would not have required the sentencing court to allow a discount on sentence to reflect the assistance. The section is not expressed in mandatory terms – “a court may impose a lesser penalty”. Whether or not to do so was a matter for the sentencing judge in the exercise of his discretion, as was the manner in which reduction of sentence was to be achieved. That point was made in Hamzy v R [2014] NSWCCA 223 at [72] – [73]:

“It should be noted that s23(4) does not prescribe a method or manner in which the discounting is to be achieved. In R v Gallagher [1991] 23 NSWLR 220 Gleeson CJ (with whom Meagher JA and Hunt J agreed) said:

"It is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by "tariffs" derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice."

Those remarks of Gleeson CJ are, of course, qualified by s23(4). Nevertheless, as Basten JA observed in R v Ehrlich v R [2012] NSWCCA 38 at [7] their "tenor is not diminished".

53. Neither did counsel’s conduct of the case lead to any disadvantage to the applicant in the sentence that he received. Whilst the sentencing judge did not refer to s 23 or quantify and apply a discount on sentence in recognition of the assistance given, nor did his Honour fail to take the evidence concerning the surrender of the firearm into account. It is clear from exchanges with the Bar Table and his Honour’s remarks that it was principally the circumstance of the recovery of the firearm that persuaded him to conclude that the applicant was remorseful, and ameliorate the sentence imposed on that basis. To counsel (referring also to the applicant’s letter to the court) his Honour said:

“[…] subject to what the Crown says, I would have no difficulty finding remorse. Normally, I'm not that much impressed with letters. But that, taken with the surrender of the firearm, I think entitles me to find remorse”.

54. That comment was echoed in his Honour’s remarks, in the portion extracted at [32] above.

55. The approach his Honour took is an entirely legitimate approach to the evidence and, arguably, one which would have rendered the award of any further reduction in sentence pursuant to s 23 inappropriate. Basten JA referred in Ehrlich v R (2012) 219 A Crim R 415; [2012] NSWCCA 38, at [14], to the care that needs to be taken in not “double-counting” assistance to the authorities as both evidence of contrition and a discrete s 23 feature:

“Assistance to authorities may also reflect contrition: R v Cartwright (1989) 17 NSWLR 243 at 256 (Hunt and Badgery-Parker JJ). To the extent that such contrition is, by statute, included within the discount for the plea, care must be taken by the Court to avoid double counting in respect of the discount for assistance”.

56. In Hamzy, the same point was made, citing Ehrlich:

“As was further explained by Basten JA in Ehrlich at [11] […] s 23(4) "says nothing as to the manner in which the discounting is to be achieved. Indeed, on one view, the manner in which it is achieved is irrelevant: the selected reduction can be expressed in a number of different ways, none of which is prohibited." The real issue with respect to the allowance of a discount on two bases is to avoid double counting of a particular element”.

57. Having relied upon the applicant’s disclosure of the location of the gun to conclude that he was remorseful and thereby lessen the sentence that would otherwise have been imposed, noting what was said in Ehrlich and Hamzy about “double counting”, it was not open to his Honour to allow a second and further reduction in the sentence to reflect the assistance given to the authorities.

58. There is no reason to conclude that the sentence imposed would have been a lesser one had counsel for the applicant referred in submissions to s 23. The sentencing judge was bound to impose a sentence that adequately reflected the gravity of what were objectively very serious offences. For a reason that was largely obscure on the evidence, the applicant took up a loaded pistol, and on two separate occasions discharged the weapon multiple times, on public streets, in residential areas, in circumstances that were highly dangerous. The applicant’s conduct put others – particularly Mr Field but potentially any other person in the area – in real jeopardy. That Mr Field sustained only a minor injury after a barrage of bullets were discharged into his house, and at him and his car, is attributable only to good fortune. The sentence imposed upon the applicant had to reflect the seriousness of his conduct.

59. It also had to reflect principles of general and specific deterrence. The resort to firearms as a means by which to resolve disputes is increasingly common in the community, with catastrophic results, for those directly involved, but also more broadly. The risk of severe injury or death to persons in the vicinity when a firearm is discharged is obvious; but beyond that the whole community suffers. The presence and use of firearms fosters a perception of threat and danger, placing the community in fear and giving rise to concerns that our streets are unsafe, and gunmen can walk those streets with impunity. As the sentencing judge observed,

“[…] firearms wreak havoc in residential and suburban areas. […]

The decent and respectable citizens of any community are entitled to go about their lawful business without the expectation of something out of a Western movie occurring in the streets”.

60. The sentence imposed by his Honour had to uphold the rule of law by acting as a deterrent to the applicant and to others who might contemplate the unlawful use of a firearm.

61. In the overall context of the applicant’s crimes, the fact that he surrendered the gun he had used to commit them had limited value as assistance to the authorities. Any discrete discount applied to the sentence that would otherwise have been imposed was likely to have been relatively low. The real value of the evidence was, as counsel at first instance likely concluded, in what the surrender of the firearm said about contrition and remorse.

62. There was no miscarriage of justice occasioned by the absence of a specific reference to s 23 of the C(SP) Act in the submissions made to the sentencing court. Counsel and the sentencing judge were alive to the importance of the surrender of the firearm, and it was given appropriate weight on sentence.

The Question of an Extension of Time

63. Sentence was imposed on 15 May 2020; the application for leave to appeal was filed on 31 October 2022, over two years out of time. The explanation for the lengthy delay in filing the application is largely a financial one, with the applicant’s solicitor noting that the applicant had difficulty “in raising the relevant funds”, at least in part because of the reduced income to the family business during the height of the COVID-19 pandemic. As a secondary feature the Court was advised that there had also been difficulty in securing advice from counsel, with three counsel briefed for advice prior to advice being finally received, adding to both the funds and time required to bring the application.

64. None of the matters raised explain why any Notice of Intention to Appeal could not have been filed within time, and thereafter extended insofar as was allowed.

65. Even accepting, however, that the information to explain the delay is adequate to that purpose, having concluded that the application for leave to appeal cannot succeed, I would not grant an extension of time in which to bring the application.

Conclusions

66. For all of these reasons I propose the following order:

1. An extension of time in which to bring an application for leave to appeal is refused.

67. DHANJI J: I have had the considerable benefit of reading the reasons of Wilson J in draft. I agree with the orders proposed by her Honour but prefer to state my own reasons for that agreement.

68. There will rarely be a case in which an advocate could not have done something differently for the benefit of the client. As Wilson J has pointed out, establishing a miscarriage of justice is a very different thing to establishing that the case could have been better put. In the context of sentencing, an offender’s advocate is responsible for decisions with respect to challenging the evidence led by the Crown, the evidence to be led on behalf of the offender, and the submissions to be made. Subject to what is said below, those decisions are made with a view to influencing the instinctive synthesis that is then undertaken by the sentencing judge, whereby the judge “identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 per McHugh J at [51]. As has been said many times, sentencing is not a mathematical exercise. In this context, it is not possible to know the precise impact of decisions made by counsel regarding matters relevant to the process of instinctive synthesis. This, at least in part, leads to the difficulty in establishing a miscarriage of justice on the basis of an asserted failure on the part of an offender’s counsel.

67. As noted above, while sentencing is not a mathematical exercise, there is commonly a two or even three-stage approach to sentencing that does involve arithmetic. It is common that an offender is entitled to a discount on the sentence they would otherwise have received on a basis unrelated to a sentencing purpose: see Markarian v The Queen at [74]; Lehn v R [2016] NSWCCA 255 at [63]. In this context, a “sentencing purpose” is a matter relevant to the objective gravity of the offence or the subjective case for the offender. See also Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [39]; R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142 at [67]. The term “discount” refers to a quantified reduction applied after the process of instinctive synthesis has been undertaken. By operation of the C(SP) Act, the sentence an offender would otherwise have received may be discounted for a non-sentencing purpose such as the utilitarian value of a plea of guilty pursuant to s 22 of the C(SP) Act. A sentence may also be discounted for facilitating the administration of justice in the conduct of a trial pursuant to s 22A of the C(SP) Act: see Droudis v R [2020] NSWCCA 322. Additionally, as relevant here, a sentence may also be discounted for assistance to law enforcement authorities pursuant to s 23 of the C(SP) Act.

68. It is true that evidence of assistance to authorities will often be relevant to various aspects of the sentencing exercise, including those relevant to a sentencing purpose. Thus, Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 having expressed the view that it is not “always necessary, or always possible, to give a specific and separate discount” for an offender’s assistance to authorities (at 227D), said (at 228B):

“It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.”

71. While not doubting the wisdom of his Honour’s observations, matters have been overtaken by legislation, with the result that a discount is to be applied to reflect assistance given which falls within s 23 of the C(SP) Act: s 23(4). Giving a discount pursuant to s 23 for what are essentially the public policy considerations relevant to assistance (or more accurately the intention to do so), does not preclude regard being had to the same evidence as evidence of a matter relevant to a sentencing purpose. The most common example of this is the use of such evidence as evidence probative of an offender’s remorse.

72. Returning to the present case, the evidence of the applicant’s voluntary disclose of the whereabouts of the firearm was taken into account by the sentencing judge as evidence of remorse. In this way, it was relevant to the sentencing purposes of rehabilitation and the need for specific deterrence. The fact that it was relevant and used in this way did not preclude the evidence from being additionally relied upon to find a discrete discount on the basis of public policy considerations pursuant to s 23 of the C(SP) Act. Unlike the common situation where it is not possible, or is at least difficult, to make an assessment of what impact a particular decision made by an offender’s counsel may have had on the exercise of the sentencing discretion, where a sentencing judge has not been made aware of a matter that would have resulted in a discrete discount being applied to the result of the intuitive synthesis, the fact of a miscarriage is likely to be more obvious. Given the different purposes to which evidence of assistance can be relevant at different stages of the sentencing process, no issue of “double counting” arises (at least in principle).

73. Despite the above, I am, nonetheless, of the view that miscarriage has not been demonstrated in the present case. As Wilson J has pointed out, the applicant’s counsel was well aware of s 23 and the potential significance of the evidence in relation to a discount pursuant to that section, having referred to the provision when the sentencing hearing was adjourned as a result of the locating of the firearm. Despite this, at the hearing, no submission was made that such a discount should be given to the offender. Contrary to the applicant’s submissions, it cannot be concluded that this was a result of oversight or incompetence. Rather, the “failure” to raise s 23 is capable of explanation as a rational forensic decision. It was a course taken which was “explicable on the basis that it resulted or could have resulted in a forensic advantage”: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26] per Gaudron J. Indeed, in the present case, I am inclined to the view that it did lead to an advantage for the reasons discussed below.

74. Firstly, when regard is had to the various considerations referred to in s 23(2) of the Act, it is clear that any discount under the section would not have been significant. As has been pointed out by Wilson J, the assistance was limited to the surrendering of the firearm used in the offences. The surrender was far from timely. There was no suggestion that the applicant would suffer any repercussions as a result of his assistance.

75. On the other hand, the evidence had potential value as evidence of remorse. As Wilson J has pointed out, the sentencing judge found it to be significant in this regard, making reference to the matter in the exchange with counsel set out by her Honour at [53]. As Wilson J notes, this exchange was subsequently reflected in the sentencing judge’s reasons. His Honour said:

“Significantly, exhibit A also contains a statement from Detective Constable Hines which indicates that the firearm that was involved in the offending has been recovered. That is a significant matter, and that, taken into account with the expressions of remorse by the offender in his letter to me, would - in fact, does - entitle the offender to a finding on the balance of probabilities that he is remorseful. I hasten to add, but for the offender’s actions in the recovery of the firearm, I would be unlikely to find remorse.”

76. As I have endeavoured to point out, a positive finding of remorse (or some other mitigatory use) does not preclude evidence of assistance being used for the purposes of a discount pursuant to s 23. However, the above extract from his Honour’s reasons demonstrates that there was a sound forensic reason to choose not to rely on the evidence for a s 23 purpose. Reliance on the surrendering of the firearm for a s 23 purpose would have provided an alternative explanation (that is, one other than remorse) for the applicant’s action in surrendering the pistol. In the circumstances of this case, with the surrender in the order of a year after the offence, the prospect of the act being seen as a purely pragmatic decision in order to obtain a s 23 discount was a real one. It cannot, as a result, be assumed that his Honour would have found the applicant to be remorseful. His Honour’s reasons suggest that the applicant may well have lost the positive finding of remorse had he sought to use the evidence for this additional purpose.

77. The finding of remorse fed into his Honour’s finding that the applicant had good prospects of rehabilitation. In the context of sentencing proceedings where the offender did not give evidence and never explained what caused him to act in the manner he did in committing the offences, these findings were far from guaranteed. It follows from this that, viewed objectively, it was entirely rational for the applicant’s counsel to take the view that, having regard to the limited nature of the assistance it was more valuable if taken into account to establish remorse, and that such a finding would be jeopardised if the evidence was relied upon for the additional purpose of a s 23 discount. To my mind, this is the most cogent explanation for the “failure” to rely on s 23, particularly having regard to the specific reference to the provision by counsel when the recovery of the firearm was first raised on 6 April 2020.

78. It follows from the above that a miscarriage on the basis of the “incompetence, carelessness or oversight of the applicant’s counsel” in failing to raise the applicant’s entitlement to a discount pursuant to s 23 has not been established.

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Decision last updated: 12 April 2023