Police v Ammoun
[2023] ACTMC 9
•31 March 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Police v Ammoun |
| Citation: | [2023] ACTMC 9 |
| Hearing Date: | 16 March 2023 |
| DecisionDate: | 31 March 2023 |
| Before: | Magistrate Temby |
| Decision: | See [222]. |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – discharge a firearm at a building – possession of a firearm – admissibility and consideration of victim impact statements – consideration of De Simoni principle – delusional disorder – consideration of Verdins principles – whether additional discount for assistance in administration of justice warranted |
| Legislation Cited: | Crimes (Police Powers and Firearms Offence) Amendment Act 2017 (ACT) |
| Cases Cited: | Ah-Keni v R [2020] NSWCCA 122 |
| Parties: | Police ( Crown) |
| Representation: | Solicitors |
| File Numbers: | CC 8004, 8005 of 2022 |
MAGISTRATE TEMBY:
Introduction
1․On 14 December 2022, Ali Ammoun (the Defendant) entered pleas of guilty to the following offences:
(a)Count 1 (CC2022/8004): Recklessly discharge a firearm at a building, namely, the Canberra Airport, Terminal Circuit, Piallago, contrary to section 28B of the Crimes Act 1900 (ACT) (ACT Crimes Act). The maximum penalty for this offence is 10 years’ imprisonment.
(b)Count 2 (CC2022/8005): Possessed a firearm, namely, a 38/200 Smith & Wesson revolver, serial number 954009 whilst not authorised by a licence, permit or otherwise under the Firearms Act 1996 (ACT). The maximum penalty for this offence is 5 years’ imprisonment.
2․The matter came before me on 16 March 2023 for a sentencing hearing. Ms Lee, of Legal Aid ACT, appeared for the Defendant and Mr Chatterton, of the office of the ACT DPP, appeared on behalf of the DPP. At the sentencing hearing I received into evidence:
(a)the Prosecution Tender Bundle, admitted as Exhibit 1, which comprised:
(i)the charge sheets for Counts 1 and 2;
(ii)an Agreed Statement of Facts;
(iii)15 Victim Impact Statements; and
(iv)some basic information regarding the charges, the timing of the Defendant’s pleas of guilty and his time in custody;
(b)a Pre-Sentence Report, dated 14 March 2023, admitted as Exhibit 2;
(c)video footage of two locations inside the terminal building in the minutes leading up to, and following, the Defendant having discharged his gun, admitted as Exhibit 3;
(d)a report prepared by Ms Tabitha Frew, clinical psychologist, at the request of Legal Aid ACT, dated 6 March 2023, admitted as Exhibit 4;
(e)a bundle of documents prepared by ACT Corrective Services, admitted as Exhibit 5;
(f)a bundle of documents which were described by Ms Lee as being documents that the Defendant gave to Ms Frew during his consultation with her, being documents he had with him at the time of the shooting, admitted as Exhibit 6. Some of the documents contained within this bundle were prepared after the shooting incident, and therefore could not be documents of the kind described. Nevertheless, however described, I accept that they are relevant to the sentencing exercise I was faced with; and
(g)two character references submitted on the Defendant’s behalf, admitted as Exhibit 7.
3․I note that the authors of the five Victim Impact Statements read their statements in court and one of those people also read his daughter’s statement. Mr Chatterton read seven of the statements and two were handed up without being read aloud in court.
4․Additionally, the Defendant himself gave evidence.
Agreed Facts
5․The Prosecution Tender Bundle contains an Agreed Statement of Facts (Agreed Facts). The key facts are summarised below.
6․At about 1.22pm on Sunday, 14 August 2002, the Defendant arrived at the Canberra Airport in a taxi. The airport was operational and open.
7․The Defendant got out of the taxi carrying a brown satchel and a black backpack and walked inside the terminal building.
8․In the terminal building, he walked past a couple who were seated near the Jetstar check-in area before he returned to the area where they were seated. He opened his bag, removed a 38/200 Smith & Wesson revolver and loaded it. The revolver had several after-market modifications and had the capacity to hold six rounds of ammunition.
9․Once the revolver was loaded, the Defendant stood up, raised the revolver and fired five continuous rounds into the external glass panels of the terminal building, causing damage to three of them. The panels were positioned above an area being used by members of the public.
10․After firing his revolver, the Defendant said to the couple sitting near him words to the effect of, ‘I won’t harm you, don’t be upset’. The man told the Defendant that they would go, and leave him alone. The woman said to the man, ‘Let’s go, let’s go, this man’s shooting, this is a real gun’.
11․The Defendant then walked a few metres from where he had been seated, towards the check-in desks, and placed the revolver on the ground, along with several rounds of live ammunition. He collected the empty bullet casings and placed them with the revolver. He then returned to the seating area and sat down.
12․The shots were heard by members of the public, including children, as well as airline staff working in the airport. The shooting caused panic and confusion at the terminal.
13․In the check-in area, passengers ran from the direction of the sound of shots. People hid under tables, and behind self-service counters, and some exited the terminal building.
14․Passengers waiting to board flights in the departure area of the airport sought refuge where they could, including in the Qantas lounge, the Virgin lounge, and offices (where they remained behind locked doors until the arrival of emergency services).
15․One woman waiting with her family for their flight to Brisbane started running with her children, becoming separated from her wider family. She believed the airport was under terrorist attack by a number of people due to the number of shots heard.
16․Whilst running to take refuge, she tripped and fell, injuring her right leg. When she arrived in Brisbane later that evening, she went to hospital where it was discovered that she had fractured her right patella.
17․At about 1.29pm, ‘000’ operators started receiving multiple calls from people at the airport reporting the shooting. AFP officers in the terminal building were also alerted to what was happening by a member of staff working at a Jetstar check-in desk, who ducked under his counter to press a duress button after hearing the shots and the sound of discharged bullets hitting the floor.
18․People at the terminal were worried about friends, family and colleagues in other parts of the building and were anxious to communicate with family outside to tell them they were safe.
19․Police officers attended the airport, and found the Defendant seated opposite the check-in desks, with the revolver, bullet casings and rounds of live ammunition still on the ground where he had placed them.
20․The Defendant was immediately arrested. Just before 7pm, he participated in an interview with police officers, during which he made admissions to his offending behaviour at the airport. Subsequent police enquiries revealed that the Defendant does not hold a licence to possess a firearm in any state or territory in Australia.
21․At the time of committing the offences on 14 August 2022, the Defendant was on parole in relation to a sentence of imprisonment for 16 years following a conviction in Western Australia for an offence of attempted murder and other offences.
Victim Impact Statements
22․As noted above, there were 15 Victim Impact Statements that were tendered, through the Prosecution Tender Bundle, at the sentencing hearing. These statements were prepared by:
(a)Ruth Bodey;
(b)Elizabeth Cain;
(c)Sean Cathie;
(d)David Court;
(e)Joanne Hardwick-Court;
(f)Helen King;
(g)Cassidy Leadbeatter;
(h)Brendan Lucking;
(i)Oliver Macgregor;
(j)Sandra Maiolo;
(k)Rachel Rogers;
(l)Diana Samson;
(m)Amanda Sollorz;
(n)Phil Sperryn; and
(o)Alison Wells.
23․Ms Cain, Mr Court, Ms Hardwick-Court, Mr Lucking and Ms Wells read their statements in Court. Mr Court read his daughter’s statement, being that of Ms Leadbeatter. Ms Bodey and Ms Maiolo’s statements were handed up without being read. I have now read those statements. Mr Chatterton read the remainder of the statements.
Admissibility of Victim Impact Statements
24․On behalf of the Defendant, Ms Lee contended that the authors of the Victim Impact Statements are not primary victims for the purposes of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) and that the Victim Impact Statements were therefore inadmissible. The heart of Ms Lee’s submission was that section 28B of the ACT Crimes Act creates an offence against property, as opposed to particular individuals, and that there is no primary victim to the offending.
25․Ms Lee submitted that there is no reliance on ‘fear or apprehension for safety’ to make out the offence, and thus the authors of the Victim Impact Statements are not primary victims for the purposes of section 47 of the Sentencing Act. Ms Lee submitted that the conceptualisation of ‘primary’ victims envisages the existence of ‘secondary’ victims, but the Sentencing Act makes no provision for persons other than primary victims to provide a Victim Impact Statement except in the event of the death of a primary victim.
26․Section 49 of the Sentencing Act provides that the victim of an offence may make a victim impact statement. Under section 53 of the Sentencing Act, the court must consider any Victim Impact Statement given to the court in relation to the offence.
27․Section 47 of the Sentencing Act defines a ‘victim’ as being, ‘a person (a primary victim) who suffers harm because of the offence’ or ‘if a primary victim dies because of the offence – a person who was financially or psychologically dependent on the primary victim immediately before the primary victim’s death’. While this second category of victim is not defined to be a ‘secondary victim’, it would appear that, given that the first category of victim is defined as a primary victim then the second category must be describing who a secondary victim is.
28․In this respect, I note that, while section 49 allows a number of categories of person, other than the victim, to make a Victim Impact Statement, section 47 makes clear that a Victim Impact Statement must be made ‘by or for’ a victim, and thus the categories of person identified in section 49 are not secondary victims who could make a Victim Impact Statement on their own behalf.
29․Section 47 defines harm to include, relevantly, ‘mental injury or emotional suffering (including grief)’, and ‘economic loss’. Section 47 defines the phrase ‘because of’ as meaning, relevantly, ‘as a result of, or in the course of, the commission of the offence’. That is, the harm suffered by the person may arise at the time of (that is, ‘in the course of’) the commission of the offence, or at a later time (so long as it is ‘as a result of’ the commission of the offence).
30․As I suggested to Ms Lee at the sentencing hearing, I am of the view that a witness to the commission of an offence, of the kind committed by the Defendant, may fall within the description of a person who suffers harm, including emotional suffering, as a result of the commission of the offence, and may therefore provide a Victim Impact Statement. I include in the concept of witness, someone who observes the commission of the offence, or who otherwise directly perceives the commission or aftermath of the offence (for example, hearing aspects of the offending conduct or being directly impacted by the aftermath).
31․In that respect, I do not consider that the use of the phrase ‘primary victim’ in section 47 limits the class of persons who can be a victim for the purposes of that section beyond the criteria that are set out in section 47 of being: (a) a person; (b) who suffers harm (as defined); and (c) that harm is suffered as a result of, or in the course of, the commission of the offence. In particular, I do not consider that section 47 limits the class of persons who may be a victim to those persons whose interests a particular provision directly seeks to protect.
32․Ms Lee relied on the decision of R v Iacuone [2014] ACTSC 149 per Burns J, which considered the question whether the parents of the victim of a grooming offence could provide a Victim Impact Statement under section 16A of the Crimes Act 1911 (Cth). Ms Lee noted that Burns J had found, at [18], that ‘the meaning of victim in a legislative regime like that found in Pt 4.3 [of the Sentencing Act] will be determined by a combination of statutory interpretation and the circumstances of an offence’.
33․Burns J found, at [15], that the term ‘victim’ plainly included the person who is groomed, as the primary victim, but not the loved ones of the victim, who may also suffer ‘by reason of their feelings for the primary victim’. As I pointed out to Ms Lee at the sentencing hearing, it seemed to me that the key aspect of this finding was that the reason why the victim’s mother did not satisfy the test of being a victim was because her harm arose as a result of her feelings for her daughter, not because she had suffered directly as a result of the grooming conduct.
34․In my view, that is a very different circumstance to that which arises in the present case. Here, while it is true that neither offence to which the Defendant pleaded guilty is directed at conduct which must necessarily be carried out against a person, that does not mean that a person in a building in which someone is carrying a gun, and who shoots that gun, cannot be directly impacted by that conduct. In fact, it is likely that any person who witnesses or perceives the conduct would be directly impacted. Any harm they suffer is not secondary to the impact of the conduct on the building.
35․In Berichon v The Queen [2013] VSCA 319 (Berichon v The Queen), the Victorian Court of Appeal was required to consider whether particular persons met the definition of victims for the purposes of the Sentencing Act 1991 (Vic). That Act defined a victim to be a ‘person who, or body that, has suffered injury, loss or damage … as a direct result of the offence, whether or not that injury loss or damage was foreseeable by the offender’. I do not consider that that provides for a broader class of victim than section 47 of the Sentencing Act.
36․In that case, Redlich JA noted, at [19], that:
The term ‘victim’ must be given the broad interpretation which the legislature clearly intended. Victims are not confined to the object or target of the crime or those who are related to the object or target. The victim must only have suffered in one of the defined ways as a ‘direct result’ of the offence. Even if the person have no connection to the object or target of the offence, they may be a victim by their mere presence in the circumstances in which the crime is committed’.
37․By way of example, Redlich JA noted that in Fagan v The Crimes Compensation Tribunal [1982] HCA 49, Mason and Wilson JJ had found in a different context (an application for compensation for injury suffered as a result of a criminal act) that a direct result may include ‘the effects on a person who suffered shock to an extent which produced a heart attack as a result of witnessing a criminal act such as an assault on a third person’.
38․As I also pointed out at the sentencing hearing, there are other aspects of the decision of Burns J that point away from the submission that the Victim Impact Statements should not be received. In particular:
(a)his Honour noted, at [17], that ‘superior courts have cautioned against striving to put a narrow interpretation on “victim” in the context of a VIS’ (referring to the decision of the Victorian Court of Appeal in Berichon v The Queen); and
(b)at [22], his Honour referred to a decision of the Northern Territory Supreme Court, Gumbinyarra v Teague [2003] NTSC 25, in which Mildren J did not admit a Victim Impact Statement made by a member of the staff of a health clinic of which the appellant had smashed a window and injured himself, leaving blood on the floor. It was, contrary to the situation in the case presently before the court, of significance to his Honour that the health clinic was unoccupied when it was entered by the appellant and there was no stress suffered by any individual on hearing or learning about the break-in to the building. His Honour noted that it had not been proven that the appellant had intended to injure the staff and it was not reasonably foreseeable that they would suffer any harm in the circumstances. As I have indicated, I consider that in the present circumstances it was reasonably foreseeable that people in the terminal building may suffer harm as a result of the Defendant shooting his gun.
39․Further, as Burns J noted at [24]:
… It does not follow from this requirement [that any finding of fact by a criminal court contrary to the Defendant for the purposes of sentencing must be found beyond a reasonable doubt] that the test of admissibility of details of harm in a VIS is whether the court is satisfied beyond a reasonable doubt that the harm occurred as a result of the offence. Courts frequently receive evidence which is ultimately not accepted as establishing a fact to the requisite standard. Admissibility in that regard depends on relevance, and if the proposed evidence of harm is arguably relevant it will usually be received, with the question of what it proves to be determined by the sentencing judge …
40․Accordingly, I considered that the authors of the Victim Impact Statements may be victims for the purposes of section 47 of the Sentencing Act and, as defined by that section, ‘primary victims’. On that basis, I did not accept Ms Lee’s submission that the Victim Impact Statements were inadmissible. I noted that, in making that ruling I had not, by that stage, read the Victim Impact Statements and had not formed any view about the content of any of those statements.
41․Ms Lee’s related submission was based on the fact that the DPP withdrew a charge which is directed at the protection of persons in the position of those from whom Victim Impact Statements were obtained, and that the authors of those statements may have been primary victims with respect to that charge. The charge was CC2022/8006 – intentional discharge of a firearm so as to cause another person reasonable apprehension for their safety.
42․Ms Lee noted that the withdrawal of this charge meant that the court would need to consider whether reliance on harm as suffered by the individuals as a result of their fear, as set out in the Victim Impact Statements, would offend the De Simoni principle (The Queen v De Simoni (1981) 147 CLR 383) or would otherwise be unfair to the Defendant.
43․The parties agreed that I could proceed in accordance with the approach set out in R v Porter (No 3) [2022] ACTSC 236 (Porter (No 3)), per Loukas-Karlsson J, at [60] to [67], in assessing the admissibility of, and weight to be given to, particular parts of the Victim Impact Statements. The key aspects of that approach are that:
(a)it may be open to a judge to rule on admissibility of portions of Victim Impact Statements prior to them being read [64] but, in accordance with the approach adopted in R v Swift [2007] VSCA 52, it is also open to a court to permit the Victim Impact Statements to be read at the sentencing hearing and to then determine after the hearing any issues regarding the admissibility of any parts of the statements (at [61]), including because:
(i)this may be preferable to asking the victims to attend court on another occasion (at [61]); and
(ii)there is a significant therapeutic benefit in allowing victims to read their statements to the court, so as to enable victims to place before the court, in their own words, the impact of the offending (at [65],[66]);
(b)counsel for a defendant retains a duty to take objection to those parts of material which counsel wishes to treat as inadmissible (at [62]-[63]); and
(c)if objection is taken on a matter of substance to any part of a Victim Impact Statement which is inadmissible, the court should either rule it inadmissible or make it clear (at the sentencing hearing or in sentencing reasons) that no reliance would be or was being placed on that part of the material (at [62], quoting from R v Swift).
44․At the conclusion of the sentencing hearing, the parties provided the court with a marked copy of the Victim Impact Statements (MFI 1) which indicated those parts of the statements that Ms Lee considered to be inadmissible (marked green), and those parts (in particular) with respect to which I would need to make a determination as to the weight they should be given (marked yellow), together with an indication from Mr Chatterton as to whether he agreed with the position expressed by Ms Lee. I noted that, in considering the Victim Impact Statements, I would have regard to the application of the De Simoni principle.
Application of the De Simoni principle to Count 1
45․As Ms Lee noted in her submissions, under section 28B of the ACT Crimes Act, a person commits an offence if the person recklessly discharges a firearm at a building or conveyance. The Explanatory Memorandum to the Crimes (Police Powers and Firearms Offence) Amendment Act 2017 (ACT), which inserted section 28B into the ACT Crimes Act, relevantly stated that:
The new offence in this bill will capture people shooting at any building or vehicle where other people might be, including homes or businesses … This legislation has been drafted based on similar provisions in New South Wales. A particular person does not need to have been the target of the shooting, and a person does not need to have been injured for the offence to apply. Unlike the offence of an act endangering life, the new offence does not rely on a victim being in fear or apprehension for their safety.
46․In contrast, paragraph 27(3)(d) of the ACT Crimes Act creates an offence if a person intentionally and unlawfully discharges any loaded arms at another person or so as to cause another person reasonable apprehension for his or her safety. Ms Lee notes that the Defendant had been charged with this offence, but that it was withdrawn.
47․Ms Lee submitted that this is relevant to the court’s consideration of whether reliance on harm suffered by individuals as a result of their fear would offend the De Simoni principle or would otherwise be unfair to the Defendant.
48․Ms Lee identified the following passage from De Simoni, per Gibbs CJ at 389:
… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
49․While the maximum penalties for each of section 28B and paragraph 27(3)(d) are the same (10 years each), Ms Lee submits that that does not preclude the operation of the De Simoni principle. She submitted that an offence against paragraph 27(3)(d) – being an act endangering life, carried out against particular individuals – is objectively more serious than an offence against section 28B – being an inherently dangerous act, carried out against property.
50․Ms Lee relied on Cassidy v R [2012] NSWCCA 68, being a case in which offences under ss 27 to 30 of the Crimes Act 1900 (NSW) (NSW Crimes Act), including the offence of attempted murder, were regarded by the court as more serious for the purposes of the De Simoni principle than an offence under section 198 of the NSW Crimes Act (destroying or damaging property with intention of endangering life), notwithstanding that the latter offence had the same maximum penalty. The key distinguishing feature was that the former set of offences carried standard non-parole periods, and the latter did not, which demonstrated that the legislature treated the former as more serious. Basten JA also considered that the moral culpability of a person who had an intent to kill was higher than a person whose intention was to endanger life.
51․On the other hand, in Hector v R [2003] NSWCCA 196, O’Keefe J (with whom the other members of the court agreed), expressed the view, at [19], in relation to Gibbs CJ’s remarks in De Simoni, that:
From the foregoing paragraph it can be seen that it is not every reference to a circumstance that may amount to aggravation that will infringe the common law principle referred to above, or any equivalent statutory provision of like kind. An analysis of the judgment of Gibbs CJ, with whom Mason and Murphy JJ agreed, shows that if a matter, which might ordinarily be described as a circumstance of aggravation, is taken into account but is not such as to render the offender liable to a greater punishment, then the common law principle referred to above is not infringed, nor is the relevant statutory provision’.
52․In Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 (EPA v Wollondilly Abattoirs), Brereton JA (with whom the other members of the court agreed), stated at [66] that (citations omitted):
It is now well-established that the maximum penalty, and the standard non-parole period where there is one, are the legislative signposts which inform the sentencing process. For present purposes, they provide clear objective markers for comparing the relative seriousness of the offences. Their use as the exclusive indicator of relative seriousness is consistent with the underlying rationale of the principle, which is that an offender should not be exposed, on conviction for a lesser offence, to being sentenced in respect of conduct which would have made it a greater offence, of which he or she has not been convicted. They also provide objective criteria, for Courts, prosecutors and defendants alike, whereas the evaluation of the relative moral obloquy associated with different offences will often be impressionistic and uncertain. Use of such a yardstick would introduce uncertainty where it is neither required nor desirable. Using anything other than the statutory signposts of maximum penalty and standard non-parole period would involve introducing very difficult questions of discretionary judgment about relative moral culpability, which are undesirable in principles of the criminal law.
53․On that basis, his Honour found that, as the provisions there under consideration (two offence provisions within the Protection of the Environment Operations Act 1999 (NSW) (POEO Act) had the same maximum penalty, neither was more serious than the other and therefore the De Simoni principle did not apply.
54․For the reasons given by Brereton JA in EPA v Wollondilly Abattoirs, I do not consider that taking into account the harm suffered by individuals as a result of their fear would offend the De Simoni principle. Both paragraph 27(3)(d) and section 28B provide for 10 year maximum sentences for the offences that they create and neither has a mandatory non-parole period.
Unfairness in relation to Count 1
55․As noted, Ms Lee’s alternative position is that it would nevertheless be unfair to the Defendant to have regard to the harm suffered by individuals as a result of their fear, given that the charge of intentionally discharging a firearm so as to cause another person reasonable apprehension for their safety was withdrawn by the prosecution.
56․While Ms Lee did not identify any authorities in support of this position, I note that a similar submission was addressed by Brereton JA in EPA v Wollondilly Abattoirs.
57․Brereton JA explained the basis for an alternative principle, at [68] to [70], as follows (citations omitted):
[68] The second proposition does not depend on the relative seriousness of the offences, but on their different elements. It is reflected in the statement of Gibbs CJ in De Simoni of the “fundamental and important principle, that no one should be punished for an offence of which he has not been convicted”, and in the first limb of the statement of Darling J in R v Bright, which was cited by Gibbs CJ in De Simoni, that the sentencing judge “must not attribute to the prisoner that he is guilty of an offence with which he has not been charged”…
[69] It is this principle that explains a number of cases which were cited on behalf of Mr Davis for the proposition that De Simoni was not confined to situations in which the maximum penalty for the aggravated offence was greater than for the lesser offence. Thus, in McCullough v R, the offender was charged with malicious wounding, and not with the malicious infliction of grievous bodily harm ... In sentencing for malicious wounding, the judge took into account other injuries inflicted upon the victim that were not wounds and were more serious than the wounds. Howie J (with whom McLellan CJ at CL and Simpson J agreed) held that this was impermissible, because although the same penalty applied for both malicious wounding and malicious infliction of grievous bodily harm, there were two separate offences depending upon the type of injury inflicted, and it was not permissible to sentence an offender for injuries not charged where those injuries are more serious [His Honour found that]:
...38 The Judge was clearly entitled to take into account the nature of the assaults that gave rise to, or surrounded, the wounding. She was also entitled to take into account other injuries inflicted in the course of conduct resulting in the wounding that were less serious than the wounding. In my opinion her Honour was not, however, entitled to take into account other injuries inflicted upon the victim that were not wounds and were more serious than the wounds. A broken wrist is not encompassed in a charge of wounding and, particularly in the case of a 60 year old, was considerably more serious than the wounds. I do not believe that the Judge could take into account that the victim spent five days in hospital because that was not identified as being a result of the wounding or of injuries that were less serious than the wounding.
[70] Similarly, in R v Young, where the offender had been indicted on alternative charges of robbery and stealing from the person – both offences under the same section of the Crimes Act, which carry the same maximum penalty – and the Crown had accepted a plea of guilty to the charge of stealing from the person in full discharge of the indictment, it was held impermissible to take into account for the purposes of sentencing a threat or force putting the victim in fear, which was an element of robbery but not of stealing. After referring to observations in the judgment of Smart AJ (with whom Wood CJ at CL agreed) in R v Hua, to the effect that “too much should not be made of the distinction between steal from the person and robbery”, and that in sentencing for stealing “[i]t would not be wrong for the judge to take into account that the offence had the potential for violence or the potential for putting the victim in fear”, Hidden J (with whom James J and Smart AJ agreed) said:
10 Nevertheless, nothing in Smart AJ’s judgment in Hua suggests that the distinction between robbery and stealing from the person should not be maintained. To do so, and to be seen to do so, is of particular importance in a case such as the present. No doubt, the applicant offered the plea of guilty to the alternative charge of stealing from the person, and the Crown prosecutor accepted it, in the expectation that heouldd be dealt with less severely than he might have been if he had faced sentence for robbery. The passages from the remarks on sentence to which I have referred do suggest that his Honour blurred the distinction between the two offences, and give rise to a reasonable apprehension that the sentencing exercise was not focussed upon the elements of the alternative charge to which the applicant had pleaded guilty.
58․At [71], Brereton JA identified the relevant question to be whether, in sentencing a Defendant under a given offence provision, ‘taking into account [a particular consideration] as a potentially aggravating circumstance … involves punishing the offender for a matter which is extraneous to the offence, though it could be relevant to a different offence’.
59․In EPA v Wollondilly Abattoirs itself, Brereton JA concluded that, in sentencing an offender under section 169 of the POEO Act, which created an offence of strict liability, the offender’s state of mind was not extraneous to the offence and could be taken into account. This was so, even though the offender’s state of mind was not an element of the offence charged but could have been relevant to a different offence.
60․Two key reasons for his Honour taking that view were that:
(a)‘it is uncontroversial that the state of mind of an offender – including actual intention, recklessness, or negligence – is relevant to culpability for the purposes of sentencing for an offence of strict liability, notwithstanding that the offender’s state of mind is not an element of liability. An offence that is committed intentionally, recklessly or negligently is objectively more serious than one not so committed, and those states of mind exacerbate the objective culpability of an offender’ (at [72]); and
(b)‘the scheme of provisions for accessorial liability in the POEO Act, as explained above, is not to confine all prosecutions of officers who are knowingly concerned in a corporate offence to s 169B, but to facilitate prosecutions in respect of offences which attract special executive liability under s 169 – and carry the same maximum penalty as officer accessorial liability under s 169B – regardless of whether or not the officer is an intentional participant. This does not render state of mind – including actual intention (or knowing concern) – irrelevant to culpability for the purposes of sentencing under s 169’.
61․In the present matter, I am of the view that the fear suffered by the witnesses to the shooting, and the resultant harm they suffered, is not extraneous to the offence, even though the creation of fear is not an element of the offence under section 28B and it would have been relevant to the withdrawn charge under paragraph 27(3)(d) of the ACT Crimes Act. The reasons why I have taken this view are that:
(a)it is the natural consequence of a person shooting at a building that witnesses to the shooting may suffer fear;
(b)any harm arising from that fear that is reasonably foreseeable as a result of the offending conduct should be taken into account in assessing the seriousness of the conduct;
(c)section 28B is not a mere property offence. As the relevant Explanatory Memorandum notes, section 28B is directed at ‘people shooting at any building or vehicle where other people might be, including homes or businesses’;
(d)relatedly, the maximum penalty of 10 years’ imprisonment that section 28B provides for can only sensibly be understood as reflecting the possible impact of the shooting on people (that is, while the offence could be made out if there were no witnesses, the ‘worst case’ of the offence (warranting the maximum sentence) is unlikely to be one in which the impact of the shooting is limited to the building itself, as a mere property offence);
(e)approaching section 28B in this way would not render paragraph 27(3)(d) redundant, given the different elements that apply to each of the offences. For example:
(i)the offence in paragraph 27(3)(d) would be appropriate if a Defendant shot at a person. In these circumstances, the Defendant could not be charged with an offence under section 28B;
(ii)similarly, the offence in paragraph 27(3)(d) would be appropriate if a Defendant shot a firearm, so as to cause another person reasonable apprehension for their safety, otherwise than in circumstances where the Defendant shot at a building. Again, in those circumstances, the Defendant could not be charged with an offence under section 28B.
62․I note that this view is consistent with the approach taken by Wilson J in R v Magro [2019] NSWSC 343 (Magro), in sentencing the offender in that case for an offence under paragraph 93G(1)(b) of the NSW Crimes Act. Under paragraph 93G(1)(b), it is an offence for a person to fire a firearm in or near a public place.
63․Wilson J found, at [41], that:
It is not an element of an offence contrary to s 93G(1)(b) of the Crimes Act that people are nearby or endangered by the discharge of the firearm. That this was so in this instance heightens the seriousness of the conduct.
64․His Honour adopted this approach even though there was a separate offence, under paragraph 93G(1)I which incorporated endangerment as an element of the offence. Paragraph 93G(1)I provides that a person commits an offence if the person carries or fires a firearm ‘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’.
65․Similarly, in R v Colomer [2013] NSWDC 45 (R v Colomer), Nicholson SC DCJ commented, at [50]-[56]:
[50] Section 93G of the Crimes Act, which creates the offence of firing a firearm in a public place, sets a maximum penalty of 10 years for the offence. That section creates a number of offences carrying the same maximum penalty, such as possessing a loaded firearm in a public place, carrying a firearm in a manner likely to endanger property, carrying a firearm with disregard for the safety of himself or otherwise. None of those offences necessarily involve the discharge of a firearm to constitute the offence.
[51] The offence before the court, however, is one that does require the discharge of the firearm. I should note, in fairness, there are other offences in the section, all other things being equal, inherently more serious than the offence I am dealing with also carrying the same maximum penalty of 10 years. For example, fires a firearm in a manner likely to injure a person, firing likely to endanger a person or firing a firearm with disregard for the safety of others.
[52] Discharging a firearm is clearly an offence against public safety. There are three areas of concern in this case; the potential for a direct hit from a projectile, the potential for an indirect hit from the ricochet from a projectile and the potential for “collateral” harm resulting in high levels of stress, fear and recognising exposure to lethal danger.
[53] In this case there were consequences, both given in evidence and visible from the demeanour from a number of witnesses, of the trauma and post-traumatic effects of the offence. While it is unlikely this offender foresaw the psychological and emotional damage his acts would cause, those who make and administer the firearm laws are well aware of them.
[54] Harm and damage to persons through unlawful acts constitute anti-social conduct of a high order. I note that section 93G of the Crimes Act is headed: “Causing Danger With Firearms or Spear Guns”.
[55] The presence of up to a dozen or so persons adds to the severity of the offending conduct. Clearly if the offence had occurred at midnight with no one present, the place would still be a public place, but the scope for harm to others would have been less. On the other hand, if there had been a union or employer meeting called in the driveway with 50 or 100 persons present at the time of discharge, the severity of the offence would have been greater than the offence I am dealing with.
[56] But considering the potential danger to others, does not offend the De Simoni [1981] HCA 31; (1981) 147 CLR 383 principle. That would appear to be contemplated by the heading and terms of the section. The fact that the Colt pistol was discharged two times, increases the criminality because there became two occasions, as distinct from one, when persons, or property, were put at risk of being struck and two occasions where stress level would be excited.
66․Further, in R v Hallam [2021] ACTSC 141 (Hallam), the only sentencing decision to have dealt with section 28B of the ACT Crimes Act, Burns ACJ considered that it was relevant to the sentencing decision that the Defendant knew that the discharge of the firearm in the direction of a residence in which he knew that people were located, carried a risk of serious injury or death.
67․Given my view that that the fear suffered by the witnesses to the shooting, and the resultant harm they suffered, is not extraneous to the offence, and having regard to the comments made in the cases just mentioned which provide support for that view, as well as the scope of matters which are set out in the Agreed Facts, I do not consider that it would be unfair to the Defendant to have regard to the fear suffered by the witnesses to the shooting, and the resultant harm they suffered. As I will discuss, I have also been cautious in determining the scope of matters I have taken into account from Victim Impact Statements.
Consideration of Victim Impact Statements
68․I make the following findings regarding the specific objections raised by Ms Lee:
(a)in the statement of Ms Bodey, I exclude the section marked green, on the basis that parts of it traversed the Agreed Facts, save for the following statements which I considered provided Ms Bodey’s perspective of the incident in a way that was not inconsistent with the Agreed Facts:
(i)‘All of a sudden there was a series of huge noises and my first thought was that perhaps a wall of the building was collapsing. I looked around the side of a round pillar which was behind me and saw that this man had a gun and was shooting at the glass wall or the lights above’;
(ii)‘We both ran as fast as we could and my heart was pounding and I was breathless by the time we got from the secluded area to the check in area’;
(iii)‘As I was running my thoughts were of him starring [sic] at me with a gun in his hand and at this stage I was thinking I may get a bullet in my back as I was running. I actually did think – this could be the end of my life’;
(b)similarly, in the statement of Mr Sperryn, I exclude the section marked green, save for the following statements:
(i)‘I heard this very loud bang and we turned around to see the man in question holding a … revolver shooting the large panes of glass that made up the terminal’s wall’;
(ii)‘Ruth and I … scrambled as best we could away from that place. We both felt very vulnerable with our backs to the offender. We made way through the terminal and outside shouting to other persons to flee’;
(c)in the statement of Ms Cain, I exclude the following statements:
(i)‘my employer requested a psychological evaluation before I could return to work’;
(ii)‘I had made a ‘last minute decision’ to travel to Canberra to visit another child who was going through a difficult time and needed emotional support and then this happened when I was leaving to go home, so I felt I had to conceal how much the event had affected me – I felt that being honest about how much I was struggling might cause her to feel guilty that she had needed my help in the first place – this is the kind of distorted thinking that the incident caused for me’;
(iii)‘Yet, I spent several more hours at my workplace unable to go home because I did not want to worry my child who was at home studying’;
(iv)‘I have had 3 days off work to come here’;
(d)in the statement of Mr Court, I exclude the statement marked green, as agreed between the parties;
(e)in the statement of Ms Hardwick-Court, I exclude the statements marked green, save for the statement, ‘Close to 8 hrs after the shots around 9pm QLD time my husband took Cassidy to Hospital’;
(f)in the statement of Ms King, I exclude the statements marked green, as agreed by the parties;
(g)in the statement of Ms Leadbeatter, I exclude the statements marked green, save for the statements that:
(i)‘I spent my sons 9th birthday in hospital with a broken knee (15th of august) and I spent my mums and my own birthday … in hospital recovering from surgery ( august 30th)’;
(ii)‘My children, my self and my family are traumatised by this event’;
(h)in the statement of Mr Macgregor, I exclude the statements marked green; and
(i)in the statement of Ms Sollorz, I exclude the statement marked green.
69․In considering the Victim Impact Statements I am conscious of the following principles:
(a)the reception of the Victim Impact Statements must be dealt with in a manner that does not prejudice the interests of the Defendant unfairly. In particular, if some consequence to an author of one of the Victim Impact Statements is not admitted by the Defendant, it must be proved beyond reasonable doubt;
(b)I should be careful before acting on assertions of fact made in the Victim Impact Statements. If they contain material that is damaging to the Defendant which is not self-evidently true or admitted by the Defendant to be true, that material should not be taken into account. This includes lay diagnoses of medical conditions: R v Singh [2006] QCA 71 at [18] per Fryberg J;
(c)however, ‘where the statements tend to be confirmatory of other evidence … or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents’;
(d)it is necessary, as with all evidence, to consider the appropriate weight to be given to material contained within the Victim Impact Statements.
70․With that in mind, I am satisfied, beyond all reasonable doubt, that the following are the key aspects of the witnesses’ experience of the offending conduct and its aftermath:
(a)several witnesses described hearing gun shots. Ms Bodey and Mr Sperryn heard the early gun shots and saw the later gun shots. Ms Wells also saw the final three shots being fired. Ms Wells explained that passengers who had not heard the gun shots became caught up in the incident when they saw the people who had heard the gunshots running;
(b)Ms Wells explained that she perceived that the direction in which the Defendant was shooting was towards the road outside the terminal building on which her father had said he would drive around, waiting for Ms Wells’ mother to return from dropping off Ms Wells (and her sister and daughter);
(c)several witnesses described the immediate aftermath of the shooting as having involved general chaos, with people (including the elderly and children, passengers, family, flight crew and security staff) running or crawling, screaming, yelling and looking for somewhere to hide. This included people running through security to the secure area. In some cases, young children needed to be carried through the airport, and Ms Wells needed to guide her blind sister;
(d)witnesses described people hiding on stairs, having to run across the runway, hiding in the gates, hiding under a table, hiding in a storeroom, being trapped in the airlock between the airside area and the arrivals area, hiding in bathrooms and in the airline lounges, with one witness describing how she saw some mothers consoling their crying children, trying to keep them quiet;
(e)Mr Court described how he became separated from family members through security doors and feared that it might be the last time he would see them;
(f)Ms Leadbeatter fell and injured her leg, and had to be helped by strangers to get to a safer place;
(g)several witnesses remarked on the fear that they held at the time that they would be shot as they attempted to get away from the Defendant or the direction from which the gun shots had been heard;
(h)several witnesses were concerned that they might die;
(i)several witnesses described the uncertainty as to whether there was one gunmen or many; and
(j)Mr Court and Ms Hardwick-Court spoke of the time it took to be reunited with family and of being able to eventually board their flight.
71․I do not consider that any of the above matters are inconsistent with the Agreed Statement of Facts. To the extent that they go beyond what is included in the Agreed Facts, I consider that they merely provide further detail with respect to the circumstances which are described in the Agreed Facts.
72․In terms of the impact of the offending conduct on the witnesses, I note that in the Victim Impact Statements:
(a)some witnesses described financial costs they have incurred as a result of the incident, including costs arising from losing a car key in the chaos and medical costs arising from physical and mental conditions suffered in, or arising from, the incident including, for Ms Leadbeatter, having to spend time in hospital;
(b)several witnesses described ongoing impacts, including:
(i)increase in anxiety, stress and/or acute emotions including, for some, giving rise to a need to take medication or seek counselling;
(ii)disturbed sleep;
(iii)not feeling safe when in public, particularly in crowded spaces like shopping centres or airports;
(iv)increased vigilance;
(v)being startled by loud noises;
(vi)not having returned to an airport since the incident;
(vii)impacts on capacity to study;
(viii)impacts on employment as a result of physical and mental health concerns (in a general sense – not diagnosed conditions) suffered in, or arising from, the incident, including:
a.having to take leave from work;
b.having to resign; and
c.not feeling able to pursue advancement opportunities;
(c)Ms Leadbeatter also described the surgery she required to treat the physical injury she suffered, as well as her ongoing pain, and her resultant reliance on family for day-to-day chores and looking after her children.
73․I am satisfied, beyond all reasonable doubt, that the witnesses have experienced these impacts, although I place low weight on the described impacts on employment and the need for medical treatment, as I cannot know the extent to which other factors contributed to those impacts and those needs. I place considerable weight on the witnesses’ observations as to the impact that the offending conduct has otherwise had on their daily lives which I am satisfied, at least in the summarised form that I have identified (which does not seek to identify the extent of the impact in terms of its severity or duration), do not overstate the impact on them. They are the kinds of impact that are reasonably foreseeable as a consequence of being witnesses to the offending conduct.
74․To that end, I note that the summary is deliberately high-level and, for that reason, likely does not do justice to the depth and range of emotions described by the authors of the Victim Impact Statements, either at the time of the incident or subsequently, or to the extent of the ongoing impact that a number of the statements describe the incident as having had. While I have taken this approach in order to ensure that I approach the sentencing task that I am faced with as fairly as possible, I would like to acknowledge each of the persons who made a statement and thank, in particular, those who gave evidence at the sentencing hearing. It was clear that reliving the incident was an emotional experience for each of them and that it took a good deal of courage for them to read their statements. I hope that doing so brought the witnesses some measure of closure.
The Defendant’s evidence regarding circumstances of offending
Defendant’s evidence
75․At the commencement of the Defendant’s evidence he apologised to people who were at the airport on the day in question. He said that he did not mean to hurt or affect anyone.
76․The Defendant stated that every crime has a reason and that he did not go to Canberra airport to shoot a gun for fun. He said that it had nothing to do with Canberra or the people at the airport. He did, however, now accept that people were affected. He said it hurts to understand the impact of his actions.
77․The Defendant said that his conduct was intended to be a message for the Australian government, arising from the fact that he had spent 16 years in prison in Western Australia for a crime he says he didn’t commit. He believes that he should not have been found guilty. He tried to contact the government in Western Australia by letter, but he didn’t receive a response until he eventually received a response from Kim Beazley, albeit that Mr Beazley apparently said that he couldn’t intervene in the case. The Defendant was very disappointed.
78․Since his release from custody he had seen or contacted lawyers, members of parliament, the AFP and reporters – more than 25 people or entities in total – as part of his efforts to pursue justice in relation to his convictions in Western Australia. He had tried to find employment, but had been unsuccessful. He had wanted to return to Lebanon to sell property that he says he owned there, in order to obtain money to set up his own restaurant, but he was refused permission. He had written to the Justice Minister and the ‘CCC’ in an attempt to recover $30 million he says was stolen from him in Western Australia, but did not receive a response. This also caused him great disappointment.
79․He decided that he needed to give notice so that people would know what was going on, in terms of the system's inability to help with legal problems. He said that he wanted people to understand:
(a)that he is a father of nine children but he never sees them, for no reason;
(b)what happened to him in Western Australia, including the fact that he had no chance to explain himself; and
(c)that he had lawyers and barristers acting for him in Western Australia but for no result. He confirmed that he had exhausted his appeal rights there.
80․The Defendant said on the day of the incident, he took a taxi from Sydney to the Canberra Airport. He said he did not see more than 20 people inside the terminal building.
81․In cross-examination, the Defendant confirmed that he took the action that he did as a result of perceived injustice in relation to his convictions from 2008. He refused to accept the 2008 convictions, saying that they were just allegations. He said he was not given a proper opportunity to put his side, although he did concede that he was given a chance to seek review through appeals. He said that no one listened.
82․He said that the people who wronged him in Western Australia, and the AFP in Canberra, were ultimately responsible for what happened to the people at the Canberra Airport.
83․The Defendant said that using a firearm has no danger if controlled – that it is only dangerous if the user doesn’t know how to control the gun. He said that the bullets that he fired could not have ricocheted because he knew 100 per cent what he was doing. He said that the shooting posed no risk to anyone.
84․The Defendant stated that he developed the plan to shoot the gun at the Canberra Airport approximately three days before the day of the incident. He said that he had started his journey on the day of the incident in Sydney and that it took approximately 3 hours to get to the airport. He said that he went straight to the airport.
85․The Defendant refused to answer questions regarding where he had obtained the gun that he used, or how long he had had it, or where he had obtained the ammunition or how much he paid, or who gave it to him, or how long it took him to get the gun.
86․I accept that the Defendant was honest in the evidence that he gave, in the sense that the answers he gave to the questions he was asked reflected his view at the time of giving evidence. However, as discussed later in these reasons, the Defendant suffers from Delusional Disorder, persecutory type, as well as a Narcissistic Personality Disorder, which impacts the extent to which his evidence can be accepted. In particular:
(a)there is a question as to the sincerity of the regret expressed by the Defendant regarding the impact of his actions, as discussed further below; and
(b)with respect to the instances where he disagreed that he had made prior statements to Ms Frew, discussed further below, I do not accept the evidence he gave. I accept that Ms Frew accurately recorded what the Defendant told her.
87․I note that I gave consideration to the bundle of documents that the Defendant apparently gave to Ms Frew as part of her assessment of the Defendant. That bundle comprises:
(a)references from two of the Defendant’s sisters – Ms Hilda Ammoun and Dr Hala Ammoun;
(b)a copy of the front cover of a publication called ‘How to Defend Australia’, written by Hugh White;
(c)an email sent by counsel briefed to appear in the Defendant’s appeal against his 2008 convictions in Western Australia, to counsel who appeared for the Defendant at the trial, regarding issues that might be relevant to the appeal;
(d)a letter written by the Defendant to ‘Mr. Minister’ raising issues with respect to his incarceration in Western Australia and his desire to transfer to Sydney, including his view that Acacia Prison would do anything to keep people in that prison (including the Defendant) because they make a lot of money from the government to hold prisoners there;
(e)a letter written by the Defendant to Saint John Ambulance raising issues with respect to evidence given by a clinical nurse in the Defendant’s trial in Western Australia;
(f)letters written by the Defendant since being held in custody on the present charges, stating that:
(i)he ‘never intended to harm or trouble anyone from working on that day’;
(ii)he has evidence to prove that he was wrongly convicted;
(iii)he had $30 million stolen from him by the Western Australian police and government;
(iv)he has lodged many complaints, which went unanswered;
(v)he had reached out to more than 20 news reporters, legal representatives, members of parliament and high ranking police officers about his case but ‘everyone … was too worried to talk because of the severity and high levels of corruption to do with my matter’;
(vi)‘I understand my actions were definitely not the right ones to take but being constantly lied to and shut down by the government has caused this level of frustration. the people need to know why I did what I did and to hear the truth about what has happened to myself and the efforts from the government to cover it up’;
(g)statements given by witnesses involved in the Defendant’s Western Australian proceedings;
(h)letters from the Defendant to the Minister for Justice, the Honourable Michael Keenan, and the Attorney-General, Senator George Brandis QC, raising issues with respect to his trial in Western Australia and the theft of money from his residence;
(i)articles from newspapers reporting on the Defendant’s trial in Western Australia;
(j)transcript from the Defendant’s trial in Western Australia;
(k)letter from the Defendant to the West Australian Newspaper, raising issues with their reporting of his trial in Western Australia;
(l)letter to the ‘Nurse Manager’ in Freemantle, raising issues with respect to the evidence given by a clinical nurse in the Defendant’s trial in Western Australia;
(m)letter from the Defendant to Her Majesty the Queen, raising issues with respect the conduct of his trial in Western Australia, together with a response from the Queen’s Senior Correspondence Officer; and
(n)a 52 page book written by the Defendant, titled ‘Understanding the Legal Case of Mr Ali Rashid Ammoun’.
88․This evidence is consistent with the evidence that the Defendant gave at the sentencing hearing in relation to his view that he was wrongly convicted in Western Australia, the steps he has taken to bring that injustice to the attention of a range of people, the frustration he felt at not being able to achieve anything as a result of those representations, the alleged theft of money from his residence in Western Australia, his apparent understanding that his action in discharging a firearm at the Canberra airport was not appropriate, and that he did not intend to harm anyone, but believed that people need to hear why he did what he did and to hear the truth as to what has happened to him.
Defendant’s submissions
89․Ms Lee highlighted that the Defendant had a limited income at the time of the offending. That he had tried to get work, and had tried to return to Lebanon to sell assets there, in order to address his financial situation, but had been unsuccessful on both fronts. She noted that the Defendant was in financial difficulty and getting nowhere in his attempts to deal with the injustice he perceived he had suffered in relation to his 2008 convictions in Western Australia. She said that the Defendant was extremely frustrated and had a sense of helplessness and that his actions need to be understood in that context. She noted the Defendant’s intention was not to create panic or physical or mental harm.
90․Ms Lee noted that, while the Defendant had been planning the incident for 3 days, he had had second thoughts when he was there and he was only in the airport for 4 minutes up until the time he put the gun down on the floor.
Prosecution submissions
91․In terms of the Defendant’s motivation for his conduct, Mr Chatterton submitted that motivation is irrelevant, as the risk inherent in the conduct is the same. He submitted that it does not diminish the level of the Defendant’s responsibility.
Objective seriousness
General principles
92․There are several principles which are relevant to the court’s consideration of the objective seriousness of the Defendant’s two offences.
93․In Forster-Jones v The Queen [2020] ACTCA 31, the court said, at [29]: ‘Assessment of the objective gravity of any offence is a fundamental part of determining the appropriate sentence for that offence …’
94․In R v McNaughton [2006] NSWCCA 242, Spigelman CJ stated, at [15]: ‘It is authoritatively established that the common law principle of proportionality, propounded in Veen v The Queen (No 2), requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances’.
95․In Muldrock v The Queen [2011] HCA 39, the Court stated, at [27]: ‘The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending’.
96․In Markarian v R [2005] HCA 25, Gleeson CJ, Gummow, Hayne and Callinan JJ noted that:
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
97․In Porter (No 3), Loukas-Karlsson J noted at [120]-[121] that:
[120] In relation to objective seriousness, I note that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. Rather, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9 …
[121] It is, accordingly, not necessary for a judge to indicate where the offence falls in a scale of low, midrange, or high criminality. What is required is for a court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39 …
98․Finally, in Murray v IA [2020] ACTSC 288, Mossop J stated, at [28]:
In relation to sentencing decisions, the relevance of past sentences to discretionary sentencing decisions is a matter of legislative prescription. The Crimes (Sentencing) Act provides that, in deciding how an offender should be sentenced for an offence, a court must consider “current sentencing practice”: s 33(1)(za). Considering past sentences is also relevant to the achievement of reasonable consistency in sentencing: Wong v The Queen [2001] HCA 64 … (Wong) at [6]. However, sentencing involves a discretionary judgment and the mix of factors that must be weighed in determining an appropriate sentence will never be precisely the same from one case to another: R v Pham [2015] HCA 39 … (Pham) at [46]. Consistency does not mean numerical equivalence but, rather, the consistent application of relevant legal principles: Wong at [6], [65]; Hili v The Queen [2010] HCA 45 … at [49]; Pham at [28].
Considerations relevant to Count 1
99․There is no set of established factors bearing on the seriousness of an offence against section 28B of the ACT Crimes Act.
100․Two factors that are obviously relevant are:
(a)the impact on the building at which the firearm is shot; and
(b)any loss caused to the owner of the building.
101․Considerations to which the courts have had regard in sentencing decisions with respect to section 28B of the ACT Crimes Act and paragraph 93G(1)(b) of the NSW Crimes Act include:
(a)number of shots fired;
(b)type of firearm used;
(c)number of witnesses who saw or heard the shots;
(d)the perception of witnesses to the shooting;
(e)the risk posed to people in the vicinity – the number of people at risk and extent of risk;
(f)impact on the broader public; and
(g)whether the discharge of the firearm was a public act.
Considerations relevant to Count 2
102․In R v Guy [2022] ACTSC 373, Refshauge J said, of the offence of unauthorised possession of a firearm contrary to paragraph 43(a)(iii) of the Firearms Act 1996 (ACT), at [53]: ‘the following aggravating factors are relevant:
(a)the number of firearms … though it is to be noted that there are more serious penalties for various numbers of firearms possessed;
(b)the nature and type of the firearm …;
(c)the capacity of the firearm to be discharged … especially whether it is loaded …;
(d)whether it is easy to conceal the firearm …;
(e)where the firearm was located and, especially, whether it was properly secured or easily accessible to others …;
(f)the length of time for which the offender had had possession of the firearm ..;
(g)the circumstances in which the firearm came into the offender’s possession …; and
(h)the reason why the offender had it in his possession …’.
Defendant’s submissions
103․Ms Lee submitted that the objective seriousness of the Defendant’s offending was at the mid-range. She submitted that the penalty should be well within the jurisdictional limit of the Magistrates Court.
104․She noted that the Defendant accepted that significant disruption was caused as a result of the operations of the airport being shut down, however she highlighted that the damage to the building was confined to two glass panels (I note that the Agreed Facts state that three glass panels were damaged). She noted that the Defendant had been planning the conduct for three days but submitted that the incident lasted a short period of time and the offending was confined to one discrete location.
105․As noted above, Ms Lee submitted that the Defendant’s reason for being at the Canberra Airport, and his reason for engaging in the conduct that he did, provides relevant context for the offending, even though his actions weren’t rational. Ms Lee noted that the Defendant’s intention was not to create panic, or any physical or mental harm, which was demonstrated by the way he put the gun down after having fired the shots.
Prosecution’s submissions
106․Mr Chatterton noted that the maximum penalties for the offences provide important yardsticks. He pointed out that the maximum penalty for Count 1 is 10 years’ imprisonment and the maximum penalty for Count 2 is 5 years’ imprisonment.
107․Mr Chatterton noted that the Defendant fired five shots into external glass panels positioned above an area being used by members of the public. Mr Chatterton noted that the shots were heard by members of the public, including children, as well as airline staff working in the terminal building. He pointed out that the shooting caused panic and confusion, with many people believing that a terrorist attack was underway. He also noted that significant disruption was caused to the airport’s operations.
108․As noted above, in terms of the Defendant’s motivation for his conduct, Mr Chatterton submitted that motivation is irrelevant, as the risk inherent in the conduct is the same.
109․Mr Chatterton noted that the facts of the case are novel as the incident was the first time a shooting has occurred at an Australian airport. Mr Chatterton identified one example of the offence on Count 1 being sentenced in the ACT, Hallam, and two cases dealing with a similar offence in NSW (R v Cicekdag [2004] NSWCCA 357 (Cicekdag) and Ah-Keni v R [2020] NSWCCA 122 (Ah-Keni).
110․Mr Chatterton submitted that, taking into account the sensitivities of the public concerning security in airport settings, the significant risks that are inherent in the firing of a gun and the multiple shots which the Defendant took, the offending for the Count 1 offence falls well above the medium range of objective seriousness.
111․Mr Chatterton submitted that, in relation to Count 2, the Defendant’s offending conduct falls in the mid-range of objective seriousness, having regard to the facts that:
(a)the firearm was a pistol that can be easily concealed;
(b)the firearm was operational; and
(c)the Defendant had excess ammunition that he did not discharge.
Comparable cases regarding Count 1
112․Given the novelty of Count 1 – the offence charged having only been the subject of one sentencing decision in the ACT (Hallam) and there having been no examples of a shooting in an airport previously – I have had regard to the Hallam and to a number of sentencing decisions made with respect to offences against paragraph 93G(1)(b) of the NSW Crimes Act.
113․As noted earlier in my reasons, section 93G of the NSW Crimes Act operates in a similar way to the combination of paragraph 27(3)(d) and section 28B of the ACT Crimes Act. For all offences under section 93G there is a 10 year maximum sentence, as there is for section 28B and paragraph 27(3)(d) of the ACT Crimes Act. Further in both cases there are offences which are committed without any harm, or risk of harm, needing to be established and offences where that is required. In particular:
(a)pursuant to paragraph 93G(1)(b) of the NSW Crimes Act, it is an offence for a person to fire a firearm in or near a public place. Pursuant to section 28B of the ACT Crimes Act, it is an offence for a person to recklessly discharge a firearm at a building or conveyance (an aircraft, vehicle or vessel). Given that the offence committed by the Defendant was committed in a public place, I do not consider that the different places relevant to each offence (in or near a public place for the purposes of the NSW Crimes Act, and at a building or conveyance for the purposes of the ACT Crimes Act) is material for present purposes. I note that in neither case is an intention to produce a particular outcome required; and
(b)pursuant to paragraph 93G(1)(c) of the NSW Crimes Act, it is an offence for a person to fire a firearm in a manner likely to injure, or endanger the safety of, himself or herself or any other person or property, or with disregard for the safety of himself or herself or any other person. Pursuant to paragraph 27(3)(d) of the ACT Crimes Act, it is an offence for a person to intentionally and unlawfully discharge any loaded arms at another person or so as to cause another person reasonable apprehension for his or her safety. While the focus of the ACT Crimes Act offence is, relevantly, on the response of the person to the discharge of the firearm, that offence also requires consideration of the risk of harm, similar to the consideration that arises under the NSW Crimes Act offence, given that the ACT Crimes Act provision requires that the apprehension that a person feels for their safety must be reasonably held.
114․Given the similarities between the provisions, I consider that the authorities on paragraph 93G(1)(b) of the NSW Crimes Act provide assistance in understanding the considerations relevant to the objective seriousness of an offence against section 28B of the ACT Crimes Act.
115․On Count 1, Mr Chatterton identified the decision of Burns ACJ in Hallam as the only example of a section 28B offence being sentenced in the ACT. In Hallam, the offender had attended on the residence of a person with whom he was engaged in a feud. The offender’s companion carried a baseball bat and the offender carried a 12-guage-pump-action shotgun. At the time, the victim, his wife, his 16 year old son and his 8 year old granddaughter were in the house.
116․The offender’s companion smashed the glass window to the side of the wooden front door, which led to the victim’s granddaughter screaming and the victim’s wife taking her out the backdoor to shelter in a neighbour’s property. The victim tried to grab the baseball bat through the broken window, before the offender fired one shot towards the front door, from a distance of approximately 2.5 metres. The victim heard the shotgun discharge and felt a blow to the left side of his chest.
117․The offender gave evidence, which the court accepted, that he did not intend to discharge the gun at the victim and had only brought the gun to the victim’s house in order to scare the occupants. The offender understood that the occupants of the house had assaulted his former partner.
118․Burns ACJ found that the offender’s actions were highly reckless in circumstances where he knew the shotgun was loaded and knew that the discharge of such a firearm in the direction of a residence in which he knew people were located carried a very high risk of serious injury or death.
119․The offender was sentenced for the offence of recklessly inflicting grievance bodily harm as well as the offence of unauthorised use of a prohibited firearm. For the offence of discharging a firearm at a building, Burns ACJ sentenced the offender to one year and seven months’ imprisonment, reduced from two years because of his guilty plea.
120․In Cicekdag, there was a fight in progress, in which the offender pointed a firearm in the general direction of one of the people opposing him, essentially aiming at the ground, and discharged a number of shots. One of the projectiles hit the opposing person’s knee (as a result of which the person suffered a sharply demarcated discoid puncture wound of approximately 5 mm diameter) and a number of people in the vicinity heard the shots discharged. The court sentenced the offender to 3 years’ imprisonment, with a non-parole period of 2 years.
121․Hoeben J, with whom the other members of the court agreed, noted (at [35]-[38]) that:
[35] … The problem with a projectile weapon, such as a firearm, is that once the projectile has been released it will travel a considerable distance and the firer has no control over its ultimate destination. Death or injury can result. This is particularly so where the discharge is indiscriminate in a public place and as happened here, a number of shots are fired.
[36] The Crown also submitted that his Honour made no specific reference to the issues of general or personal deterrence. These were matters of great importance in offences of this kind. There was a clear need for members of the public to be deterred from discharging firearms in public places.
…
[38] In a case involving a breach of s 93G(1)(b), particularly where more than one shot has been fired, the principle of deterrence, particularly general deterrence, is of considerable importance …
122․In that case, the offender was sentenced for the offence of malicious wounding as well as of the offence of discharging a firearm in a public place. As to the latter, he was sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years.
123․In Haidar v R [2007] NSWCCA 95, a fight had ensued, although there was not a high level of antagonism. One of the participants ran off, however the offender followed him and fired his .45 Glock semi-automatic pistol, once, in the direction of the person who had run away, who was by then around 70 metres away. The offender did not intend to hit the other person but did intend the bullet to pass near him and did intend to frighten the other person. McClellan CJ at CL commented, at [6], that:
171․The first is that, while the Defendant may have had a limited capacity to appreciate the wrongfulness of his conduct:
(a)that is not something that necessarily arises solely from the Defendant’s mental condition – in this respect, I note Nicholson SC DCJ’s comments in R v Colomer that it is unlikely that the offender in that case foresaw the psychological and emotional damage his acts would cause; and
(b)I do not accept that the Defendant did not appreciate that what he did was unlawful. In his oral evidence, the Defendant said that, having shot at the glass panels he collected the bullets, put them with the gun in a safe place and waited for police. While he might not have understood the effect that shooting the gun would have on those who were present in the airport, and he might have thought that he was justified in taking the action that he did, the obvious inference from that evidence is that he did know that what he did was against the law. I also note, as stated earlier, that the Defendant remarked to Ms Frew that ‘I understand my actions were definitely not the right ones to take’. I also infer, from the Defendant’s refusal to answer any questions asked of him by Mr Chatterton regarding the gun that he used, that he understood that it was wrong to possess and/or buy or sell a gun as well.
172․Secondly, whatever the Defendant’s understanding of the wrongfulness of his conduct including, in particular, the extent to which it would cause harm to others, the Defendant’s actions were planned and deliberate. He knew that taking the action that he did would bring attention to him, which is what he sought in order to raise the issues he had been agitating with respect to the unfairness of the legal system, and the grievances he held towards lawyers, journalists and paramedics involved in his 2008 convictions in Western Australia. As is recorded in Ms Frew’s report:
(a)‘Mr Ammoun was of the genuine belief that his actions at the Canberra Airport on 14 August 2022 had a pro-social, bigger picture purpose, which was to put an end to injustices against himself and to uphold the values of a democratic society … Mr Ammoun had no real insight into the psychological harm this exposure [to the discharge of the firearm] may have had on the victims’; and
(b)as noted above, the Defendant said ‘it was my last chance to prove my case … I am a justice fighter, that is my job now … The only way to get the justice I deserved was to make a big statement, that is why I shot at the glass and not the people. I wanted the attention so the world would see that I deserve justice’.
173․There are many people in society who, fairly or unfairly, are unhappy with the outcome of legal proceedings to which they are a party, and some of these people feel that they have suffered a considerable degree of injustice. It must be made clear to them, and to the Defendant, that no matter the injustice, and regardless of the level of frustration the person feels, the actions of the Defendant are not an acceptable response to those circumstances. They do not justify breaking the law and, in particular, they do not justify shooting a gun in a public building. Any person who engages in such conduct exposes themself to a significant penalty.
Remorse and Contrition
174․In Barbaro v The Queen [2012] VSCA 288, at [38]-[40], the court said that:
[38] … a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone …
[39] If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence …
[40] But sentencing discounts, and especially significant sentencing discounts, should not be given unless remorse is established by proper evidence, or unless on a proper basis the judge is content to relieve the offender of the need to discharge that burden …
175․In the Pre-Sentence Report, it is reported that:
He [the Defendant] reported that he felt [a person who had filmed him] understood his actions were righteous and supported him. Overall, Mr Ammoun demonstrated little insight into the impact of his offences on the multiple people who were present or the community as a whole. Further, Mr Ammoun minimised his offence by emphasing that he did not hurt anyone.
… he reported that his offence was intended as an act of revenge for the unfairness of his 2008 conviction. Mr Ammoun reported that the offences were premeditated and that he had chosen Canberra airport as he felt the Australian capital was where he was most likely to obtain justice. Mr Ammoun expressed the belief that if the Federal government became aware of his 2008 conviction it would be overturned.
… Mr Ammoun expressed multiple … beliefs, particularly in relation to individuals involved in his 2008 convictions. He attributed blame for his current charges to the WA government, police and judiciary for prosecuting him. Mr Ammoun claimed that he felt he had no choice but to commit the offences as he had exhausted all other options, including appealing the matter, petitioning the media and seeking assistance from public figures … this Service holds concerns that he could pose a risk to the community should he continue to seek public or media attention in this matter.
When asked about whether Mr Ammoun would be willing to engage in interventions, he advised that he would do so if it would benefit his chances of a more lenient sentence. Mr Ammoun advised that he had previously completed a medium-intensity domestic violence program in custody in WA, but reported that he had lied throughout the course in order to be found suitable for parole.
Mr Ammoun … has been assessed as a medium risk of general re-offending … During interviews, Mr Ammoun failed to accept responsibility for his offending and assigned blame to various external parties. Mr Ammoun presented as fixated on his 2008 conviction and expressed a desire to obtain revenge and draw media attention to his claims of persecution. He appeared unwilling to discuss his risk factors as he expressed the belief his offences were logical, justified and necessary …
176․As noted earlier in these reasons, at the commencement of the Defendant’s evidence he apologised to people who were at the airport on the day in question. He said that he did not mean to hurt or affect anyone, but he accepts now that people were affected. He said it hurts to understand the impact of his actions.
177․Mr Chatterton submitted that the evidence of remorse on the part of the Defendant is limited and that his apology is undermined by the lack of responsibility that he has taken for his actions.
178․I accept that the realisation that the Defendant had, that his actions caused harm to people who were present at the Canberra Airport on the day of the shooting, may have upset him to some extent, and he may have felt some sympathy for those people. However, I do not accept that he is truly remorseful. In that respect, I accept the submission made by Mr Chatterton that the Defendant’s apology is undermined by the lack of responsibility that the Defendant takes for his actions, as evidenced by the fact that he attributes ultimate responsibility for the shooting to the people who wronged him in Western Australian and the AFP in Canberra.
179․However strongly the Defendant believed that he had been wronged, and however strongly he believed that he needed to make a public statement of some kind to bring attention to his plight, the decision to take a gun to the Canberra Airport and to shoot it was his. The Defendant’s position, that the people who wronged him were ultimately responsible for what happened, evidences a lack of responsibility for his actions and an absence of any significant degree of remorse.
180․Further, the Defendant’s expression of desire, to the authors of the Pre-Sentence Report, to obtain revenge with respect to his 2008 conviction, and to draw media attention to his claims of persecution, combined with the belief he expressed, that his offences were logical, justified and necessary, is inconsistent with the Defendant being remorseful for his actions. So too is the conclusion reached by Ms Frew that the Defendant had ‘very little capacity to appreciate the wrongfulness and seriousness of his conduct in the commission of the current offences’.
181․I do not ascribe any weight to this consideration. Given the extent to which the Defendant’s apology and his stated feeling of hurt for the impact his actions caused is undermined by the lack of responsibility that the Defendant takes for his actions and his belief in the righteousness of his actions, I do not consider that the Defendant is truly remorseful and I do not consider that the feelings that the Defendant expressed at the hearing concerning the impact on his victims suggests that he has good prospects of rehabilitation.
182․The Defendant’s capacity for rehabilitation is closely aligned with the Defendant’s capacity to obtain treatment for his mental condition. In this respect, I refer to my earlier discussion of the Defendant’s mental condition, and the view I have expressed that I do not consider that the Defendant is presently motivated to accept whatever treatment is available to him.
References
183․The Defendant tendered character references authored by two of his sisters, Ms Hilda Ammoun and Dr Hala Ammoun.
184․Ms Ammoun states that the Defendant’s convictions ‘brought a tremendous amount of suffering to our family for 15 years and still does’. Ms Ammoun said that she was ‘fully confident that Ali had been subjected to great injustice during his trial in Perth’ and that ‘the court in Perth rejected all his requests for transfer to prison in Sydney, which doubled his suffering and ours’. Similarly to the position adopted by the Defendant regarding his convictions, Ms Ammoun stated that:
The material, transcripts, letters, documents and lack of proof to show how this innocent person was given 15 years in prison is completely mind blowing. The fabrication of evidence, change of witness stories and lack of truth and consistency is so present and hurtful to know that it was all missed in his trial.
185․Ms Ammoun described the incident as ‘just a “reaction”, not a “criminal act”, especially since we were witnessing the frustration and deep sadness that Ali was feeling’.
186․Similarly, Dr Ammoun wrote that the incident at Canberra airport ‘was not a criminal act, it was just an attempt by my brother to draw the attention of the Australian judiciary to the great injustice he suffered during his trial in Perth …’. Dr Ammoun also observed:
When Ali was released from Perth prison, and he came to Sydney, he was frustrated and sad: he lost his family, reputation and money, and the most beautiful years of his life in prison. He sent me all the written evidence to prove that his trial was like a circus … He has repeatedly assured me that he will not remain silent about this injustice, no matter what it costs him, and he will do the impossible to obtain the lost “justice”, and to prove to us and all people the truth of what happened with him in Perth.
187․Dr Ammoun concluded by describing the Defendant as a ‘kind, generous and beloved man of all people, who took care of us as children after the death of our father’ and asked that the court listen to his cry.
188․I do not consider that these references, which largely reflect the views of the Defendant, are in any way material to the determination of the appropriate sentence in this matter.
Criminal History
189․The Defendant’s criminal record comprises one conviction for a driving offence in 2005, one conviction for the breach of a Violence Restraining Order in 2006, and the 2008 convictions with which the Defendant takes issue. All of these convictions were recorded in Western Australia.
190․The report prepared by ACT Corrective Services confirms that the Defendant has not had any behavioural issues whilst in custody.
191․The 2008 convictions were for:
(a)aggravated burglary and commit offence in dwelling;
(b)attempt to murder;
(c)deprivation of liberty (2 charges);
(d)threaten to kill;
(e)with intent to do grievous bodily harm does grievance bodily harm to another.
192․These convictions concerned his ex-wife and ex-mother-in-law. In the Defendant’s evidence he confirmed that the family violence offence recorded on his criminal record was also committed against his ex-wife and ex-mother-in-law.
193․The 2008 convictions resulted in a total sentence of 16 years’ imprisonment. At the time he committed the offences currently before the court he was on parole for these offences. The prosecution notes that this is a relevant consideration on sentencing. As Loukas-Karlsson J noted in R v Carpenter [2022] ACTSC 6 (Carpenter), at [59]: ‘Conditional liberty is relevant to the determination of the appropriate punishment as it is an aggravating factor on sentence.
194․Further, his criminal history clearly does not entitle him to any leniency in the determination of an appropriate sentence.
195․Mr Chatterton also relied on the High Court decision of Veen v R (No 2) [1988] HCA 14. In that case, Mason CJ, Brennan, Dawson and Toohey JJ said that:
… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do would be to impose a fresh penalty for past offences … The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and others from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.
196․Further, as Loukas-Karlsson J noted in Carpenter, at [76]:
The offender’s criminal history assists in determining whether there is a need for personal deterrence (Cotter v Corvisy at 312 [64]), and as evidence with respect to likely prospects of rehabilitation and an offender’s expressed desires for rehabilitation: Saga v Reid [2010] ACTSC 59.
197․The extent to which the Defendant’s criminal record is relevant to an assessment of the Defendant’s prospects of rehabilitation or, alternatively, as indicating a continuing attitude of disobedience of the law cannot be separated from a consideration of his mental condition. As I have noted in my discussion with respect to the Defendant’s mental condition, I consider that the danger that the Defendant poses to the community means that the protection of the community and, consequently, specific deterrence, are considerations of particular importance in this matter. I do not consider that the Defendant’s criminal record provides a separate basis, on its own, to impose a more severe penalty.
Pleas of Guilty
198․The Defendant entered guilty pleas to both charges on 14 December 2022. This was on the fifth mention of the matter, albeit that Ms Lee submitted that the plea was entered at an early stage, given that the proceedings were adjourned at the second mention for representations to be made and the position taken by the Defendant reflects the pleas that were made, with the position of the Defendant having been communicated to the prosecution and foreshadowed to the court.
199․I note that the prosecution accepted that the Defendant should receive the full discount for an early plea.
200․On this basis, and having regard to the relevant considerations set out in section 35 of the Sentencing Act, I have allowed a 25% discount on sentence with respect to each charge for the utilitarian value of the Defendant’s early plea of guilty, including in the way that it facilitated the course of justice.
Assistance in the administration of justice / Assistance to law enforcement authorities
201․Ms Lee noted that the Defendant made full admissions to police in relation to Charge 1, albeit that she conceded that the Defendant declined to answer any questions about the gun under cross-examination at the sentencing hearing and has not assisted police in that respect.
202․I have considered whether a further discount on sentence should be given, in addition to the discount for the plea of guilty, either under section 35A or section 36 of the Sentencing Act. However, I do not consider that this is required or appropriate. This is for three reasons:
(a)the discount I have allowed for the plea of guilty, in terms of utilitarian value, in part reflects the fact that the Defendant’s admissions facilitated the course of justice. His earlier admissions to police did not materially contribute anything further to the facilitation of justice;
(b)I do not consider that the Defendant’s admissions to police indicated any remorse on his part, for the reasons already discussed in relation to the Defendant’s remorse and contrition; and
(c)this is not a case in which, but for the Defendant’s admissions, either the offences would never have come to light or it would have been difficult to prove in a defended hearing.
Time in Custody
203․The Defendant has been in custody in respect of the present offences since 14 August 2022, and he has therefore spent 230 days in custody. The sentence of imprisonment I impose will be backdated to commence on 14 August 2022.
Statutory and other Relevant Considerations
204․In sentencing the Defendant, the court is required to take into account those matters set out in section 33 of the Sentencing Act that are relevant and known. I have referred to the relevant matters above.
205․The court is also required to have regard to the objects of the Sentencing Act as set out in section 6 and to the purposes of sentencing as set out in section 7.
206․In this particular matter, the object of promoting respect for the law and the maintenance of a just and safe society is of particular importance.
207․In terms of the purposes of sentencing, as I have discussed already in the context of the discussion of the Defendant’s mental condition and his level of remorse:
(a)protection of the community from the Defendant is the primary consideration in determining the appropriate sentence given the high risk he currently presents of enacting serious and targeted physical harm to others, his perception of himself as a justice fighter who seeks revenge in relation to the injustices he has suffered, and his lack of insight into his present mental health vulnerabilities;
(b)specific deterrence is also very important in the above context, having regard also to my finding that the Defendant knew that what he was doing was contrary to the law, but considered that his actions were nevertheless justified;
(c)general deterrence is an important sentencing consideration, despite the Defendant’s mental condition, in order that other people in the community who consider that they have suffered injustice, or are otherwise frustrated by their experience of the legal system, understand that engaging in unlawful activity is not an acceptable response to their circumstances, particularly engaging in something so dangerous as discharging a firearm in a public building. People who do so, expose themselves to a significant penalty;
(d)ensuring that the Defendant is adequately punished, that the Defendant is made accountable for his actions and that his conduct is denounced are all relevant considerations, albeit that their relevance is diminished as a result of the fact that the Defendant’s mental condition reduces his moral culpability for the offences; and
(e)the Defendant’s prospects of rehabilitation are guarded. While psychiatric treatment would likely reduce his risk of future violence to a rating of low, the Defendant is likely to be resistant to receiving the treatment he requires.
Sentence
Principles
208․Pursuant to subsection 10(2) of the Sentencing Act, the court may only sentence the Defendant to imprisonment if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. Having considered all the sentencing options, it is my view that there is no appropriate alternative to imprisonment with respect to both charges that have been brought against the Defendant.
209․In assessing the appropriate sentence, I note that, even though the limit of the Court’s jurisdiction in this matter is lower than the maximum penalty for the Count 1 offence, I am required to conduct an initial assessment of the appropriate sentence without reference to that jurisdictional limit: R v Doan (2000) 50 NSWLR 115.
210․As I will be imposing two sentences of imprisonment, sections 70 and 71 of the Sentencing Act provide that the sentences must be served concurrently unless the court directs that they be served consecutively (or partly concurrently and partly consecutively). The principles relevant to the approach to be taken in this respect are set out in O’Brien v R [2015] ACTCA 47, at [26]:
(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623-624.
(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight [2005] NSWCCA 253; (2005) 155 A Crim 252 at [112]; R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18].
(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].
211․Under section 63 of the Sentencing Act, the court must take into account the period during which the Defendant has already been held in custody in relation to the offences. Further, the court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.
212․Under section 65 of the Sentencing Act the court must also set a non-parole period, and identify when the non-parole period starts and ends. A non-parole period represents the minimum period of imprisonment that justice requires that a Defendant should serve in detention. In Porter (No 3), Loukas-Karlsson J stated, at [312]-[313], that:
[312] In relation to the non-parole period, I note the comments of the Court of Appeal in Henry v The Queen [2019] ACTCA 5 at [36]-[37], citing with approval Millard v The Queen [2016] ACTCA 14; R v Bernath (1997) 1 VR 271 and Toumo’ua, that the appropriate non-parole period is not decided by some mathematical relationship. Rather, a Court must consider a range of factors in determining the appropriate non-parole period, including the need for rehabilitation, and general and specific deterrence. The Court in Henry summarised the view of the Court in Toumo’ua, stating at [37]: “the need for rehabilitation had to be balanced against the requirement that the sentence be of a severity appropriate in the individual case”.
[313] The usual range for a non-parole period in this jurisdiction is between 50-70%: Zdravkovic at [74]; Barrett v The Queen [2016] ACTCA 38 at [52]; Taylor v The Queen [2014] ACTCA 9 at [20].
Defendant’s submissions
213․Ms Lee submitted that there must be concurrency in the sentences imposed by the court.
Prosecution submissions
214․Mr Chatterton submitted that, although there is an argument for entirely concurrent sentences in this case, a degree of accumulation is required to reflect the fact that the offender’s unauthorised possession of a firearm included the period he was in the ACT travelling to the airport, before he entered the terminal.
Consideration
215․In determining an appropriate sentence to be imposed with respect to the charges that have been brought against the Defendant, I have had regard to the objective seriousness of the offences, the maximum penalties for each offence, the Victim Impact Statements, the Defendant’s subjective circumstances and the circumstances of the offending conduct, the Defendant’s mental condition, the Defendant’s references, the Defendant’s criminal history, and the Defendant’s pleas of guilty.
216․I have determined that the appropriate sentence for Charge 1 is 4 years’ imprisonment, reduced by 25% to 3 years’ imprisonment on account of the Defendant’s guilty plea. This sentence will be backdated to commence on 14 August 2022 to account for time already spent in custody.
217․I have determined that the appropriate sentence for Charge 2 is 18 months’ imprisonment, reduced by 25% to 13 months for the Defendant’s guilty plea.
218․I agree with the submissions made by Mr Chatterton with respect to concurrency. While the offending conduct relevant to Count 2 is largely subsumed within the offending conduct relevant to Count 1, it is not entirely so. As I noted earlier in these reasons, while the Defendant had not loaded the gun until he arrived at the airport, he was carrying both the gun and live ammunition in the taxi ride, concealed from the taxi driver, who had no opportunity to object to the Defendant carrying the gun and ammunition in his car.
219․I have determined that the sentence for Charge 2 should be served concurrently with the sentence for Charge 1 for 10 months and consecutively for a period of 3 months. Accordingly, the sentence for Charge 2 will commence on 14 October 2024 and end on 13 November 2025.
220․The overall head sentence will be 3 years and 3 months, backdated to commence on 14 August 2022. I consider that this sentence is just and appropriate for the Defendant’s two offences.
221․Given the views I have expressed in relation to the objective seriousness of the Defendant’s offences, the need for specific and general deterrence, and the Defendant’s guarded prospects in relation to rehabilitation, I consider that the appropriate non-parole period is 2 years and 2 months, commencing on 14 August 2022 and ending on 13 October 2024.
Orders
222․Accordingly, I make the following orders:
(a)I record convictions in relation to each of charges 2022/8004 and 8005.
(b)In respect of Count 1: Recklessly discharge a firearm at a building, the Defendant is sentenced to 3 years’ imprisonment, commencing on 14 August 2022 and ending on 13 August 2025.
(c)In respect of Count 2: Possess a firearm whilst not authorised by a licence, permit or otherwise, the Defendant is sentenced to 13 months’ imprisonment, commencing on 14 October 2024 and ending on 13 November 2025.
(d)I set a non-parole period of 2 years and 2 months, commencing on 14 August 2022 and ending on 13 October 2024.
| I certify that the preceding two hundred and twenty-two [222] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Mason Britton Date: 6 April 2023 |
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