R v Abdallah

[2005] NSWCCA 365

Reported Decision: 157 A Crim R 219

New South Wales

Court of Criminal Appeal

CITATION:	R v Abdallah [2005] NSWCCA 365 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 August 2005
JUDGMENT DATE:	16 November 2005
JUDGMENT OF:	Simpson J at 1; Johnson J at 96; Rothman J at 97
DECISION:	(i) appeal against conviction dismissed; (ii) in respect of the sentence imposed on each count, leave to appeal be granted, the sentence imposed be confirmed save and except that each sentence be specified to commence on 8 March 2004. The earliest date on which the appellant would be eligible for release on parole is 7 September 2009.

CATCHWORDS:	appeal against conviction for shooting at a person with intent to do grievous bodily harm - fracas in club - three shots fired - security guard injured by bullet - expert evidence - videotape evidence with time counter - still photographs as evidence - whether verdict unreasonable - whether miscarriage of justice resulted from failure to direct the jury - the meaning of "shoot at" - indispensable facts of Crown case - evidence referred to in summing up - obligation of trial judge in summing up - application for leave to appeal against sentences imposed - subjective circumstances - contrition and remorse - criminality - youth - reduced value of pleas of guilty - pre-trial custody
LEGISLATION CITED:	Crimes Act 1900 s33A(1), s34, s35, s93G(1)(b) Crimes (Sentencing Procedure) Act 1999 s44(2) Criminal Law Consoldiation Act 1935 (SA) s21(c)
CASES CITED:	M v The Queen [1994] HCA 63; 181 CLR 487 R v AEM [2002] NSWCCA 58 R v Allam, NSWCCA, unreported, 13 April 1993 R v Evans (1973) 5 SASR 183 R v GDP (1991) 53 A Crim R 112 R v Gordon Benson Marshall (1987) 26 A Crim R 259 R v Nichols (1991) 57 A Crim R 391 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v WKR (1993) 32 NSWLR 447 Shepherd v The Queen [1990] HCA 56; 170 CLR 573 Smith v The Queen [2001] HCA 50; 206 CLR 650 The Queen v de Simoni [1981] HCA 31; 147 CLR 383
PARTIES:	Crown - Respondent Mohamed Abdallah - Appellant
FILE NUMBER(S):	CCA 2005/916
COUNSEL:	W Dawe QC - Crown P Boulton SC - Appellant
SOLICITORS:	S Kavanagh - Crown Murpheys Lawyers - Appellant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3185
LOWER COURT JUDICIAL OFFICER:	Marien DCJ

2005/916

SIMPSON J
JOHNSON J
ROTHMAN J

Wednesday 16 November 2005

REGINA v Mohamed ABDALLAH

Judgment

1 SIMPSON J: On 16 March 2004 the appellant was presented for trial on an indictment containing three counts, alleging that he:

“1. On 26 October 2002 at Revesby in the State of New South Wales fired a firearm in or near a public place, namely the Revesby Workers’ Club.”
“2. On 26 October 2002 at Revesby in the State of New South Wales did maliciously shoot at Eddie Sua with intent to do grievous bodily harm.”
alternatively
“On 26 October 2002 at Revesby in the State of New South Wales did maliciously discharge a loaded arm, namely a gun with intent to do grievous bodily harm to any person.”
“3. On 26 October 2002 at Revesby in the State of New South Wales fired a firearm in or near a public place, namely the Revesby Workers’ Club.”

2 Counts 1 and 3 were charged under s93G(1)(b) of the Crimes Act 1900, which prescribes a maximum penalty of imprisonment for 10 years for each offence; the principal charge in Count 2 was brought under s33 of the Crimes Act, which prescribes a maximum penalty of imprisonment for 25 years; the alternative to Count 2 was brought under s33A(1) of the Crimes Act, which prescribes a maximum penalty of imprisonment for 14 years.

3 The alternatives in Count 2 came to be referred to, respectively, as Counts 2A and 2B. A third alternative, not expressly pleaded in the indictment, but provided for by s34 of the Crimes Act, of maliciously inflicting grievous bodily harm, was also put to the jury. This came to be referred to as Count 2C. Conviction of that offence carries a maximum penalty of imprisonment for seven years.

4 The appellant entered pleas of guilty to the first and third counts, and a plea of not guilty to each of the alternatives of the second count. In lieu of the offences the subject of the second count, he offered to plead guilty to an offence of malicious wounding, under s35 of the Crimes Act, also carrying a maximum penalty of imprisonment for seven years. The Crown declined to accept that plea in discharge of the indictment so far as count 2 was concerned and a trial of the three alternatives proceeded in the Campbelltown District Court before Marien DCJ and a jury. On 25 March 2004 the jury returned a verdict of guilty on the first alternative, Count 2A.

5 On 11 June 2004 Marien DCJ sentenced the appellant. On the first count he imposed a sentence of imprisonment for a fixed term of 18 months; on the second, imprisonment for eight years with a non-parole period of five and a half years; and on the third count, a fixed term of imprisonment for three and a half years. He specified that all sentences were to commence on 25 March 2004, and thus to be served concurrently. The sentences on the first and third counts were therefore fully subsumed by the sentence on the second count.

6 The appellant now appeals against the conviction on the second count and seeks leave to appeal against the sentences imposed.

7 All charges arose out of events that occurred at the Revesby Workers’ Club (“the Club”) in the early hours of 26 October 2002. Much of what was alleged by the Crown was not in dispute. Indeed, the area of factual contest was narrow, but significant.

the Crown case

8 What immediately follows is intended to be an account of the case alleged by the Crown, and should not be taken as representing findings of fact.

9 The Club is located in Brett Street Revesby. At the front is a covered entrance patio, called in the evidence a “portico”. Behind the portico is a set of aluminium-framed automatic sliding glass doors. Immediately inside the doors is a vacant space, with marbled floor, referred to in the evidence as an “airlock”. On the other side of the airlock, opposite, but not centred on, the exterior doors, is another, internal, set of automatic sliding glass doors. Above these doors is a sensor, which activates their automatic operation. The interior doors open onto a foyer that has some furnishings. In this area is a large decorative water feature, or fountain. Past the fountain are some stairs and escalators.

10 The appellant and his younger brother, together with some friends, had been present at the Club since the evening of 25 October. Just before 2.00 am a disturbance occurred on the dance floor, as a result of which several security guards escorted the appellant’s brother and at least one other of their group from the club. A scuffle broke out. The appellant’s brother removed his shirt and a gun fell to the ground. The appellant, who was in the general vicinity but not at that time involved in the incident, picked up the gun and hid it in his clothing. By this time a number of patrons and security guards were involved. One security guard, Eddie Sua, became engaged in a scuffle with the appellant’s brother. The appellant fired the gun into the external awning or portico. This bullet was fired at 1.58.10 am. Mr Sua ran towards the inside of the club. Angered by Mr Sua’s treatment of his brother, the appellant followed him. Mr Sua ran from outside the club, through the external sliding doors, across the airlock, and through the second set of sliding doors into the foyer and past the fountain, towards the escalators.

11 The appellant moved into the airlock area and fired a second shot, through the inner doors and into the foyer. This shot was fired at 1.58.16 am. The bullet struck Mr Sua in the ankle. At that time he was “parallel” to the fountain. The appellant then walked out of the external doors, turned, and fired a third shot in the general direction of the Club. This was at 1.58.22 am. He ran from the scene, towards Revesby Railway Station, and, with others of his group, entered a taxi.

12 The entire incident was recorded on closed circuit television. The resultant videotape was a significant part of the Crown case, and was played to the jury both during the Crown case and the defence case. Superimposed on the videotape is a time counter, which enables precise reference to be made to what is there depicted. From the videotape was produced a series of still photographs, also bearing time-counting notations. A photo board of 21 frames, showing the scene at very short intervals between 1.57.51 am and 1.58.21 am, became Exhibit C.

13 Apart from the videotape and still photographs, which were a central part of the Crown case, the prosecution evidence included accounts of the events given by a number of persons present at the time, including Mr Sua, and some other members of the security staff of the Club. Other witnesses were patrons of the Club. It is obvious that the events which they described took place over a very short time. No witness observed the events in their entirety. Each recounted what he (or, in one case, she) had observed from a different perspective. It is, partly, for that reason that the videotape is of such central importance. One witness, a Mr Lyons (a patron), gave evidence that he was outside the Club when he saw a man pull an object from the front of his pants. Mr Lyons heard two or three shots. At the time of the first shot, he heard a man say “Who wants to die?” or something like that. It is of some significance that, although another witness, Mr Browne (a supervising security guard), heard the appellant say something, which Mr Browne could not make out, no other witness gave evidence of hearing the appellant say what Mr Lyons attributed to him.

14 Forensic examination of the scene shortly after the incident revealed ballistic damage in the roof lining of the portico, not far from the external doors. The bullet that caused this damage was never recovered. Another bullet was found embedded in the aluminium doorframe of the internal doors, 40 millimetres from the sensor and 2.745 millimetres above floor level. Neither visual examination of the scene at that time, nor subsequent forensic examination by a ballistics expert, revealed any other bullets, fragments of bullets or ballistic damage.

15 It was the Crown case that the first shot caused the damage to the roof lining of the portico; that it was the bullet from the second shot that struck Mr Sua in the ankle; and that it was the bullet from the third shot that was retrieved from the doorframe near the sensor. The first of these propositions was not disputed. The principal area of dispute concerned the second shot. I will elaborate on this in due course.

16 For reasons that are not apparent to me, the Crown accepted at trial that it was essential to its case that it show that the bullet that struck Mr Sua was the second of the three fired. Although senior counsel who appeared for the Crown on appeal took a different position, he accepted that he is bound by the stance adopted at trial.

17 Given the nature of the grounds of appeal, it will be necessary to return to the detail of the evidence that was given in the Crown case. It is, however, convenient at this point to move to an outline of the defence case.

the defence case

18 The appellant did not deny that he was the person who fired each of the three shots. He agreed that the first bullet fired was the bullet that caused the damage to the portico ceiling. Central to the case advanced on his behalf was a challenge to the Crown’s proposition that it was the bullet from the second shot that struck and injured Mr Sua. On the appellant’s analysis of the evidence, he proposed that it was this bullet that lodged in the sensor. He did not seek to account for the third bullet, other than to suggest that it might have ricocheted off some surface within the Club, even fragmenting, with the bullet, or one of its fragments, striking Mr Sua.

19 The appellant gave evidence. He told of attending the Club, and of the disturbance that began on the dance floor. In large part, his evidence was given by reference to the videotape, which was played (not for the first time) and paused from time to time to allow him to illustrate what he was relating. He gave an account of seeing the gun fall to the ground, and of picking it up. This he did, he said, because he did not want anybody else to pick it up and use it. He said that he hid it in his clothing and moved away from the crowd. The appellant identified himself on the video, pulling the gun from his clothing, raising it and firing it into the ceiling. This was the first shot, fired at 1.58.10 am. He fired it, he said, because he was frightened and panicked. The appellant then identified himself two seconds later, at 1.58.12, holding the gun in a forward position. He said he was doing this to show that he had a gun and to induce the security officers involved to return to the Club and to break up the fight that had by then erupted.

20 The fight, however, continued. At 1.58.16 am the appellant still had the gun in his hand but his arm was by his side. A moment later, however, he fired again. This, he said, was:

“Just another warning shot, just so I can get away without them coming back out”.

He said he did not aim at anybody and remembered raising the gun either too high or too low for it to hit anybody.

21 At 1.58.22 am he turned and fired a third time. Again, he said, he was not aiming at anybody but directed the gun low at the ground.

22 When asked again, in evidence-in-chief, about where he fired the bullets, he said that he knew he had fired the first shot into the ceiling; he was not sure where he fired the second shot but he had raised his arm up “too high”. He said he intended to fire that shot away from people, up high and not straight at people. He gave similar evidence about the third shot, which, he said, he did not aim at anybody, but fired towards the ground. He did this so that nobody would be hit.

23 Called in the defence case was an expert witness, Suzanne Hogg, a senior lecturer in applied physics at the University of Technology Sydney. Ms Hogg was provided with the videotape which she watched and from which she extracted a number of still images. She had also inspected the Club.

24 Even with the benefit of a transcript, it is not at all easy to follow the evidence given by Ms Hogg.

25 Precisely what she had been asked to do did not emerge from the evidence. It was clear that her investigations were concentrated upon the second and the third shots. The first, which, it was common ground, had been the shot which caused the damage to the portico, was not the subject of any real dispute between the parties or examination by Mr Hogg. It was the second shot that was the focus of Ms Hogg’s purportedly expert evidence. She appears to have been asked to calculate, from what she could observe on the video and still photographic evidence, where that bullet was most likely to have gone. Although she never clearly said so, it seems to be implicit in Ms Hogg’s evidence that she concluded that the bullet from the second shot was the bullet which lodged near the sensor above the internal doors in the airlock. This was the case argued on behalf of the appellant. It is quite inconsistent with the Crown case.

26 The lack of clarity in Ms Hogg’s evidence can be seen from some extracts from the transcript. For example, she was asked:

“Q: Did you attempt to ascertain, so far as the second shot was concerned, where that shot - where the projectile from that shot was most likely to have gone?”

Her answer was as follows:

“A: The – with the details that I had, I decided to make calculations of the angle likely to be shot. I had a look at the footage and sort of by eye and you know with the information – I sort of was working on something like a twenty degrees. I put in all the dimensions, the floor dimensions, estimated the height of the person with the gun and roughly how high he was shooting it and came up with the value of about eleven degrees. I mean that is plus or minus five degrees or something, but it seemed to be basically supporting what I had looked at by eye, with the information, you know everything has got a large plus or minus on there, but it did seem to be above the horizontal and I calculated it being about eleven degrees.”

This answer cannot have been of any assistance to the jury. Regrettably, Ms Hogg’s evidence never became any clearer.

27 She confirmed that she formed the view that the second bullet had been fired in an upward direction; however, as I read her evidence, she took that view as a result of her examination of the videotape. She was then asked:

“You then calculated, it is trigonometrically from the distances, what angle the gun would have been at on the second shot to have lodged a bullet next to the sensor?”

She confirmed that this was the case. But the evidence that followed did nothing to tell the jury what that angle was. She was then asked the following question and gave the answer that follows:


“Q: Now were you also asked to do some measurements in terms of angles of shots that may have occurred. I think you are aware that there are a number of pillars?

A: Yes, when I visited the Revesby Workers’ Club I mean I came across a great big pillar for the shots to – I mean as you mentioned before I was going down there to see where the fountain was because the position of the person who had been hurt was described as being close to the fountain and with the two doors in the diagrams I wanted to see what the position of the fountain was. When I got there, there was in fact a big pillar in the way and in terms of taking direct aim I was wanting to see, you know, what was the possibility of a direct hit of somebody standing quite close to the fountain with the angles because the – I mean without any damage to the doors, presumably a shot went straight through both doors.”

28 Ms Hogg then said that, working from where the appellant was standing at the time he fired the second shot, she calculated that the degree of inclination of the gun necessary to have caused the bullet to hit above the sensor was eleven degrees. This seems to be what she was referring to in the first answer I have quoted above. Unfortunately, she was not asked whether, and did not say that, any photographic or video evidence which she examined showed the appellant holding the gun at that inclination.

29 She said she found it very difficult to be “terribly positive” about the direction in which the third shot was fired:

“... though it does look to me slightly downwards...”

This was the shot, which, on the Crown case, was the shot fired into the sensor. Obviously, if Ms Hogg were correct about that shot having been fired slightly downwards, the Crown proposition could not be correct.

30 Eventually Ms Hogg said that she did not believe that a person standing at the fountain could be hit directly by “that shot coming through the two doors”. It seems that, by “that shot” Ms Hogg was referring to the second shot. She then said:

“That’s why I went to the Workers’ Club and I spent some time just looking at the possibility of shooting through the two doors and getting anybody, even standing that close to the fountain.”

31 There are two difficulties with this evidence. The first is that Exhibit C clearly shows (and it was common ground) that, at the time he fired the second shot, the appellant was standing in the airlock. He was not outside the external doors. That means that Ms Hogg’s opinion that it was not possible for Mr Sua to be hit by a shot fired through the two doors is based upon a false premise. Secondly, it does not appear that, in giving this evidence, Ms Hogg was in any way relying upon her expertise in applied physics. She was exercising her own judgment – in fact, undertaking the task that the jury was required to undertake.

32 To enable them to undertake that task the jury were taken on a view of the Club premises. Even making some allowance for a more sophisticated approach to the exercise which Ms Hogg may have taken by reason of her physics expertise, the jury were in reality as well placed, or almost so, as she to undertake the exercise. In my opinion, even apart from a lack of clarity, Ms Hogg’s evidence could not have assisted the jury: see Smith v The Queen [2001] HCA 50; 206 CLR 650.

the grounds of appeal

33 The grounds of appeal against conviction are pleaded as follows:

“GROUND 1:
The verdict is unreasonable and cannot be supported having regard to the evidence.
GROUND 2:
There has been a miscarriage of justice resulting from the trial judge’s failure to:

(i) direct the jury as to the meaning of ‘shoot at’;

(ii) direct the jury that, before they could find that the appellant had ‘shot at’ the complainant, they had to be satisfied beyond reasonable doubt as an indispensable fact, that the appellant could see the complainant when he ‘shot at’ him; and

(iii) sum up or refer the jury to the evidence favourable to the appellant which it was entitled to take into account when assessing whether the appellant had the requisite information when he fired the second shot.”


ground 1: unreasonable verdict

34 The task of a criminal appellate court asked to review a jury conviction on the ground that it is unreasonable is stated in M v The Queen [1994] HCA 63; 181 CLR 487.

35 The argument advanced on behalf of the appellant depended heavily upon a close examination of the evidence, particularly the video evidence, of the events in question, and Ms Hogg’s evidence. It is to be recalled that the jury had the advantage of a view of the scene. Some of the submissions invited the court to put itself in the position of the jury having regard to the observations available to it on the view.

36 It was submitted that the view would have allowed the jurors to see and assess for themselves significant aspects of the evidence. That, no doubt, is correct and is the purpose for which a jury is taken on a view of a relevant location. However, it was also submitted that the jury would have been able to observe various obstructions between where the appellant was standing in the airlock when he fired the second shot and the point where Mr Sua said he felt the bullet enter his ankle; the jury would have observed the line of vision available to the appellant at the time he fired the second shot; the jury would have observed the angle at which a bullet shot from the appellant’s position would have travelled; this, it was submitted, would have demonstrated to the jury the “extreme improbability” that such a shot was aimed at Mr Sua. Finally, it was submitted, the jury would have seen that the appellant could not possibly even have seen Mr Sua, let alone aimed at him, when he fired the second shot from the position from which he did.

37 The submission is based too much upon speculation. The reality for the appellant is that the jury did have all of the advantages of a view, together with such advantage (if any) as resulted from Ms Hogg’s evidence, but did not draw the conclusion which senior counsel contends it ought to have drawn. The jury had the very real advantage of the video footage, which they were able to view as frequently as they considered necessary. In my opinion, they also would have been significantly assisted by the photo board, Exhibit C.

38 In a submission somewhat contradictory to that earlier recorded, it was argued that this was not a case where the jury’s advantage in seeing or hearing the evidence could explain the verdict. (This was a reference to the well-known passage in M v The Queen, mentioned above.)

39 I would reject this. In my opinion, the jury’s advantage in having a view is clearly an advantage not available to this court. The evidence does not satisfy me that the verdict of guilty was not an available verdict. Further, it seems to me to be entirely consistent with a rational examination of the photographic and video evidence. In this respect I have found the still frames that became Exhibit C of more assistance than the moving images in the video film which are quite difficult to decipher.

40 The submissions put in support of the first ground of appeal were divided into two, directed at the two elements of the offence charged. Firstly, it was submitted that it was not open to the jury to find that the appellant “shot at” Mr Sua. Secondly, it was argued that, even if the jury were satisfied beyond reasonable doubt, it was not open to them also to find, beyond reasonable doubt, that he did so with the intention of inflicting grievous bodily harm. The detailed submissions put in support of this proposition depended upon an analysis of the video and photographic evidence. For example, it was argued that the video shows, at 1.58.16:

“... that the appellant fired this shot when his arm was in a position higher than perpendicular to his body.”

41 This event can best be seen in photograph 16 of Exhibit C. That photograph shows the appellant standing just inside the external doors, facing towards the open internal doors. His body is partly obstructed by the external doorframe but the position of his arm can be calculated by reference to the spark which occurred when the gun was fired. The difficulty for the appellant is that his alternative proposition, that this was the bullet which hit the sensor, sits uneasily with what the photograph shows. The sensor which, on the appellant’s case, was hit by this bullet, was almost immediately above the appellant and would require a much sharper upward angle than is depicted in this photograph. The evidence was that Mr Sua was some distance away, in the foyer, when the bullet struck him. What is depicted in that photograph is far more consistent with the Crown case than with the appellant’s case.

42 It was also argued that the medical evidence concerning the injuries to Mr Sua raised the possibility or probability that his injury was caused by a bullet ricocheting off another surface, fragmenting, and then wounding him in two places on the left side of his left leg. This, it was suggested, meant that the injury was not caused as a result of a direct hit but as a result of ricochet action. This submission ignores the evidence to which I have already alluded, that close examination of the premises yielded no evidence of any damage to any surface other than the ceiling of the portico, and the doorframe near the sensor.

43 Another point made on behalf of the appellant concerned the amount of activity in the foyer and in the general area at the time the shot was fired. It was suggested that this would have obstructed the appellant’s view of Mr Sua and prevented him from aiming the shot at him. The submission presumes too much. It presumes that the appellant was lining up his shot in the manner of a professional marksman. It is far more likely that the appellant was, as he himself said, acting in panic. That he might not have been making rational assessments of the situation did not preclude his directing the shot towards Mr Sua. Immediately before the second shot was fired the appellant can be seen on the video, pointing the gun in the direction of Mr Sua, in a manner described in the evidence as “tracking” him.

44 I would reject the proposition that the jury’s finding that the appellant shot at Mr Sua could not be sustained on the evidence.

45 The second submission in this respect may be dealt with more quickly. It was that it was not open to the jury to find that, even if the appellant shot at Mr Sua, he did so with an intention to inflict grievous bodily harm.

46 In my opinion this submission must be rejected. It is axiomatic that, when a person fires a gun at another person, he does so with an intention of inflicting grievous bodily harm.

47 The submissions that were put in favour of the proposition were not, in truth, directed to that proposition, but were further submissions directed to challenging the finding that the appellant shot at Mr Sua. For example, it was pointed out that the second shot was fired very quickly; that the appellant had, immediately before that shot was fired, held his right arm down with the gun beside his body whilst waiting for the airlock to clear of people, and suddenly raised his right arm and immediately fired. This, it was argued, is consistent with his waiting to ensure that those who were present were back inside the Club and out of danger.

48 I am satisfied that it was open to the jury to find:

(i) that it was the second bullet that struck Mr Sua; and
(ii) that when he discharged the gun on that occasion, the appellant “shot at” Mr Sua.

49 As I have indicated, once the jury found that the shot was fired at Mr Sua, it was inevitable that they would also find that it was done with an intention of causing grievous bodily harm. The proposition that any other intention might accompany a shooting at is untenable. I would reject the first ground of appeal.

ground 2

50 By the second ground of appeal the appellant challenges, in a number of respects, the adequacy of the directions given to the jury. The first aspect the subject of challenge is to do with the meaning of the words “shoot at” as they appear in Count 2A on the indictment.

51 Reliance was placed upon the decision of the South Australian Court of Criminal Appeal in R vGordon Benson Marshall (1987) 26 A Crim R 259, to which I will return. What Marien DCJ said on this subject matter was:

“Now in the context of this trial and the issues in this trial and in the count, maliciously shoot at means that he intentionally shot at Mr Sua. The Crown must next prove that not only did the accused intentionally shoot at Mr Sua but that he shot at him with an intention to do grievous bodily harm to him.”

52 His Honour then went on to deal with the meaning of “grievous bodily harm”; and then with the element of specific intention to do grievous bodily harm. He then said:

“Of course, to go on to consider the intention of the accused you would have to be satisfied beyond reasonable doubt that he did shoot at Mr Sua. That is the first element and as [senior counsel who appeared for the appellant at trial] submitted to you, you would not be satisfied on all the evidence beyond reasonable doubt that with respect to the second shot, and I will say more about that shortly, that the accused shot at Mr Sua. But if you find beyond reasonable doubt that he did shoot at Mr Sua, you must then find that he shot at Mr Sua with this intention to inflict grievous bodily harm.”

His Honour then pointed out, as is obvious, that an intention to inflict grievous bodily harm may readily be inferred from a finding that a person shoots at another.

53 In Marshall, Jacobs J, with whom Johnston J and O’Loughlan J agreed, said:

“There is ample authority in this Court for the proposition that the expression ‘shoots at’ in this section means ‘shoot to hit’.”

54 His Honour then approved a direction previously given, in R vEvans (1973) 5 SASR 183, to the following effect:

“‘Shoot at’ means not only deliberately shooting in his direction but shooting in his direction intending to hit him, not necessarily to kill him, but to hit him; then it (the shooting) has to be done, whatever was done, with intent to prevent lawful apprehension.”

The difficulty for the appellant in the present case in relying upon the decision in Marshall is that the issues there before the court were very different to those which arise in the present case. In Marshall a trial by judge alone had resulted in the conviction of the appellant on a charge of murder, brought under s21(c) of the Criminal Law Consolidation Act 1935 (SA). That section created a variety of offences, relevantly of unlawfully and maliciously, by any means, shooting at any person, with intent either to:

“(e) maim, disfigure, disable, or do other grievous bodily harm to, any person; [or]
(f) resist or prevent the lawful apprehension or detainer of any person.”

The trial judge had distinguished between the intents accompanying “shooting at” necessarily proved to establish the intent to “maim, disfigure ...” and that necessary to be proved to establish an intent to prevent lawful apprehension. The trial judge had thought that the intent that accompanied a shooting at with intent to prevent lawful apprehension was not necessarily coextensive with the intent accompanying a shooting at with intent to maim, disfigure, disable or do other grievous bodily harm to any person. In the trial judge’s view, where the shooting at was said to be intended to be for the purpose of the latter, then, necessarily, the Crown would be required to prove an intent to hit the intended victim; but he envisaged that some lesser intent might accompany a shooting at for the purpose of preventing lawful apprehension. The Court of Criminal Appeal rejected that construction and held, unanimously, that “shooting at” involves an intention to hit the person shot at.

55 It seems to me that this decision does not assist the appellant. It is a decision concerned essentially with the construction of a legislative provision which does not have an entire counterpart in NSW legislation.

56 I accept that Marshall is authority (although not binding on this Court) for the proposition that “shooting at” means “shooting to hit”. I also accept that that is the ordinary and natural meaning of the words. I would construe the words “shoot at” in s33 of the Crimes Act in the same way as the SA Court did in Marshall. Here, what was essential to the Crown case was, not only proof that the appellant “shot at” Mr Sua, but that he did so intending to cause him grievous bodily harm. Integral to that proposition is that he shot at Mr Sua with intent to hit him. Marshall is not, however, authority for the proposition that a direction in those explicit terms must in every case be given to the jury.

57 I have referred to the directions given to the jury to the effect that, if the jury were satisfied that the appellant shot at Mr Sua, then they might readily infer that he did so with intent to occasion grievous bodily harm. Then the proposition can be reversed; if the jury were satisfied that the appellant fired the second shot with the intention of causing Mr Sua grievous bodily harm, then, axiomatically, they must have been satisfied that he shot at Mr Sua with intent to hit him.

58 I accept that juries must be given careful directions in relation to the elements of any offence. It is not necessary to parse and analyse words in an indictment which are unambiguous and in relation to which reliance may be placed upon the common sense of members of the jury. Here, the jury could have been under no mistake about what was alleged in the charge. If not satisfied that the appellant fired the bullet with intent to hit Mr Sua, they could not have been satisfied that he did so with intent to cause grievous bodily harm; if not satisfied that he fired the bullet with the intention of causing grievous bodily harm, they could not have been satisfied that he fired the bullet with intent to hit Mr Sua. In a context where the use of a firearm is the vehicle for the causing of grievous bodily harm, there is no basis for drawing artificial distinctions and creating mystery about the meaning of simple English linguistic concepts.

59 I find no error in the directions given with respect to the elements of Count 2A.

60 The second attack upon the directions involves the proposition that it was an indispensable fact (see Shepherd v The Queen [1990] HCA 56; 170 CLR 573) that the appellant was able to see Mr Sua and that the jury should have been, but were not, directed that they could not convict unless satisfied beyond reasonable doubt of that fact.

61 In my opinion, reliance upon Shepherd is misconceived. Shepherd was a case concerning the correct approach to a trial where the Crown case depends upon circumstantial evidence. The Court drew a distinction between facts relevant to establishing the Crown case which are essential (“indispensable”) and which therefore must be proved beyond reasonable doubt; and those which may contribute to an inference of guilt (which do not necessarily have to be proved beyond reasonable doubt). In the trial here under consideration, some discussion took place about whether a circumstantial evidence direction ought to be given. After considering that issue, Marien DCJ decided against giving such a direction. No challenge is made on appeal to that decision. This was not a circumstantial evidence case.

62 Nevertheless, the proposition may be put that an essential element of the offence of shooting at with intent is that the accused can see the victim. If that were accepted, it would be necessary for that element to be proved beyond reasonable doubt before a jury could convict. However, I do not accept the proposition. The Crown has pointed out that there may be many circumstances in which a person may shoot at another who cannot be seen – by reason of darkness, fog, some obstruction between the two persons, to name but three. I would reject this basis of the appeal.

63 The final matter raised under this ground involves what is called evidence favourable to the appellant, which, it was said, was not the subject of reference by the judge in summing up. For example, it was argued that, before firing the second shot, the appellant could be seen “tracking” Mr Sua with his arm outstretched; but that, before he fired the shot, he then lowered his arm so that it was by his side. This was indicative of abandoning any intention he had previously had. It was referred to by counsel in written submissions as “intervening act” evidence.

64 It is well established that it is not necessary for a trial judge to remind the jury of every piece of evidence which might favour an accused person. Nor is it necessary that the trial judge repeat to the jury every submission of counsel. Senior counsel who appeared for the appellant at trial had put his arguments strongly and forcefully. In the part of his summing up that dealt with counsel’s address, Marien DCJ did remind the jury of much of what had been said.

65 I am satisfied that what his Honour said was adequate in all of the circumstances. I would reject this basis of the third ground and, accordingly, I would reject the second ground of appeal.

66 I would dismiss the appeal against conviction.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

subjective circumstances

67 The appellant was born on 23 August 1982, in Australia, of Lebanese parents. He was just 20 years of age at the time of the offence. He is the third eldest in a family of five children. None of his siblings has had any adverse encounter with the criminal law. He himself has no prior criminal record. He has been in employment since leaving school at the age of 16 years. He was an average student and recorded no difficulties at school. His family remains supportive of him. He is engaged to be married, and his fiancée also remains supportive of him. Marien DCJ had the benefit of a report of a psychologist, Mr Taylor, and of a psychiatrist, Dr Nielssen. After testing, Mr Taylor concluded that the appellant has an immature and dependent personality adjustment, low self-esteem and feelings of inferiority and inadequacy. He is rather passive and conforming and would find it difficult to deal with aggression.

68 There were, however, no indications of underlying personality disorder. At the time of his consultation, the appellant was experiencing significant symptoms of anxiety disorder reactive to his present circumstances.

the remarks on sentence

69 Marien DCJ recorded the facts as they had emerged during the trial and made relevant findings of fact. He was satisfied beyond reasonable doubt (as, having regard to the jury verdict, he had to be) that at the time he fired the second shot, the appellant intended to shoot Mr Sua and to inflict grievous bodily harm upon him. He accordingly concluded that the objective criminality (with respect to all offences) was “of the highest order”.

70 His Honour said:

“The offender’s act of shooting at a defenceless man, running away from the offender at the time, was a callous and despicable act.”

71 However, he considered that the acts were “impetuous and spontaneous”; and he found that the offences were not premeditated. He accepted that it was not the appellant who brought the gun to the Club and that he did not know of its presence until he saw it on the ground. Notwithstanding that, and the impetuosity of the offences, he considered that the appellant’s conduct was of “the gravest seriousness”.

72 He took into account the appellant’s comparative youth and considered the impact of that upon the weight to be given to considerations of general deterrence. He recognised that, in sentencing young offenders, general deterrence may give way to considerations of rehabilitation: see R v GDP (1991) 53 A Crim R 112. However, his Honour also reminded himself of the line of authority in this Court which holds that that principle itself yields to others where young offenders commit crimes of an adult nature: see R v Allam, NSWCCA, unreported, 13 April 1993; R v WKR (1993) 32 NSWLR 447; R v AEM [2002] NSWCCA 58; R v Nichols (1991) 57 A Crim R 391.

73 It is not entirely clear into which of these categories his Honour placed the appellant.

74 The sentencing judge discerned some discrepancies between the account given by the appellant to Mr Taylor, and that given by him to Dr Nielssen, and regarded these discrepancies as “a matter of concern”. He recounted the history taken by Mr Taylor as follows:

“Then two security guards attacked my brother and they came charging towards me. I jumped back and I held the gun up and I fired two shots into the ceiling to break up the fight. Then I pointed it so they could see I had it, then fired another shot aimed at the floor that hit him in the leg.”

He then recounted Dr Nielssen’s report, in the following terms:

“Mr Abdallah said that his initial response in picking up the gun was to stop it from being used. He said that he did not know anything about guns and had never fired one before. He agreed that he was able to fire the gun without moving the safety catch and reflected on how dangerous it had been to put a gun without a safety catch into his waist band.”

75 His Honour took into account the pleas of guilty in relation to the first and third counts, but held that the reduction in sentence to which the appellant would ordinarily be entitled consequential thereon (R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383), was not as great as would otherwise be the case because, having regard to the plea of not guilty on the second count, there could only be “a notional utilitarian value” in those pleas. Nor did he accept that the sentences ought to be significantly reduced by reason of the appellant’s expression of remorse and contrition, because the case against him was overwhelming.

76 It was also submitted (as it was in this Court) that the appellant’s offer to plead guilty to a charge of malicious wounding in lieu of the count 2 alternatives ought give rise to a discount on sentence. His Honour rejected this proposition.

77 He found special circumstances within the meaning of s44(2) of the Crimes (Sentencing Procedure) Act 1999 and varied the statutory proportion between the head sentence and the non-parole period which would otherwise have applied.

the grounds of the application

78 Five specific grounds were advanced in support of the application for leave to appeal against sentence. They were framed as follows:

“Ground 1: His Honour erred by giving insufficient weight to the appellant’s contrition as was evident from his offer to plead guilty to the offence of malicious wounding.
Ground 2: His Honour erred in assessing the objective criminality of this conduct as being ‘of the highest order’ and failing to give sufficient weight to the very unusual objective circumstance surrounding the offences.
Ground 3: His Honour erred in taking into account matters, including aggravating features, which he was not entitled to take into account and failing to give sufficient weight to other matters.
Ground 4: His Honour failed to give sufficient discounts for pleas of guilty in relation to counts 1 and 3.
Ground 5: His Honour erred in failing to either date the sentence from 8 March 2004 or to reduce the sentence by 17 days.”

ground 1: contrition and remorse

79 In this Court, the submission was repeated that the appellant’s offer to plead guilty to a charge of malicious wounding was evidence of his contrition and remorse for his offending conduct, and therefore a matter which he was entitled to have taken into account in his favour on sentence. Having regard to all the circumstances, I cannot accept that this is so. The evidence against the appellant was, as the sentencing judge said, overwhelming. The entirety of his conduct was captured on videotape. He contested the only issue which was not fully, objectively, and comprehensively demonstrated by that evidence. That was the issue of his mental state. It was argued that his defence was conducted efficiently and responsibly and in a way that did not waste time or require formal proof by the Crown of several matters which may have prolonged the trial and that he was entitled to some benefit for that degree of cooperation. It is difficult to see what else the appellant could reasonably have put in issue, when one bears in mind the nature of the evidence against him. It is true that little issue was taken with the factual matters put forward in the Crown case, but, as I have already said, there was little that the appellant could have put in issue. I do not accept that the manner in which the trial was conducted is evidence of contrition or remorse. The appellant continued to deny the full extent of his criminal responsibility. I would reject this ground of the application.

ground 2: criminality

80 It was then argued that the finding that the appellant’s criminality was “of the highest order” was erroneous and that the sentencing judge failed to give sufficient weight to the very unusual subjective circumstances. It was pointed out that the sentencing judge accepted that the appellant did not own the gun nor did he bring it to the Club and that he had not known of its presence until it fell to the ground; and that his motivation for picking it up was concern that it may be used by somebody else; that the first shot was clearly fired into the air as a warning shot at a time when his brother was being “manhandled” by Mr Sua; that, except for the jury’s contrary finding, the appellant’s behaviour was at all times consistent with an intention not to inflict grievous bodily harm on anybody; that the appellant was motivated by a desire to protect his younger brother and that he had no intention of becoming involved in the fracas or in any violence; that the appellant had never fired a gun before; that his conduct was extremely spontaneous and impulsive and reactive to an (for him) unprecedented situation; that age and immaturity influenced his decision to fire. It was, therefore, submitted that it was erroneous to characterise the appellant’s criminality as “of the highest order”.

81 What this submission omits is the objective seriousness of the appellant’s conduct. In a crowded venue, with a large number of people moving rapidly, the appellant, inexperienced in the use of firearms, picked up and fired a gun in the direction of the crowds of people. While, in one sense, his inexperience in the use of firearms might weigh in his favour, in another, it points the other way: the appellant did not know how to use the gun safely.

82 I do not think this challenge can succeed. As the sentence imposed demonstrates, the use of the phrase “of the highest order” does not equate to a finding that the offence was in the most serious category of its kind.

83 Criticism was also made of a passage in the remarks on sentence in which his Honour commented that it was fortunate that Mr Sua did not receive far more serious injuries and that a possible consequence of the appellant’s criminal act could well have been fatal injuries to Mr Sua. It was argued that these comments were “entirely speculative” and completely irrelevant to the sentencing process. I reject the proposition that these remarks were entirely speculative; it is perfectly obvious that the consequences of the appellant’s conduct could have been much more serious and could have included fatalities. Nor were they irrelevant to the sentencing process. The appellant was not sentenced on the basis that more serious injuries were inflicted; but it is appropriate, in considering the objective seriousness of an offence, to bear in mind possible consequences that have not eventuated. I would reject this ground of the application.

ground 3: matters taken into account

84 It was contended that the two passages extracted by the sentencing judge from the psychological and psychiatric reports did not reveal any significant discrepancies in the accounts given by the appellant to the two practitioners. For my own part, I would not conclude that the two accounts attributed to the appellant are in any significant way inconsistent with one another. At most, they focus upon different aspects of the events in question. However, I am unable to perceive that the discrepancy referred to by his Honour was used in any way adversely to the appellant in the determination of sentence. What his Honour was concerned about was that the appellant, even at that stage, refused to confront the extent of his criminality. This was undoubtedly a correct approach.

85 It was then argued that the judge was in error in the manner in which he dealt with the appellant’s youth. It was suggested that he concluded that his conduct should be treated as “an adult crime”. I have already set out above what was said by his Honour on this subject. I have also noted that he does not appear to have come to a clear, expressed, conclusion. I certainly do not read the remarks as a conclusion that the appellant was not entitled to any benefit on sentence by reason of his youth and immaturity.

86 It was necessary to balance that fact against the objective gravity of the offences. It was then argued that inadequate weight was given to the appellant’s good character. This cannot be sustained. His Honour referred to the appellant’s prior clear criminal record, and expressly found that the offences were both “entirely out of character” and “completely inexplicable” and that it was a “tragedy” that the appellant stood for sentence for such serious crimes. Quite plainly, his Honour properly took these matters into account.

87 Another attack made under this head concerned asserted errors made in relation to count 3.

88 What his Honour said was this:

“With respect to the offender’s assertion that he fired the third shot into the ground, it is absolutely clear from the video that he was aiming, at least at shoulder height or slightly higher, at the time of the third discharge.
I am satisfied on the evidence that it was the third shot that hit the aluminium frame of the inner doors of the airlock. Given that the accused immediately fired the third shot after he spun around and again faced the foyer, it is highly unlikely that he was aiming to hit the aluminium frame.
The objective seriousness of the third discharge is of itself an extremely serious offence. It is clear from the video that the third discharge towards the foyer of the Club occurred at a time when, on the offenders’ own admission at the trial, there were people running everywhere.”

89 It was argued that the inference that should be drawn from this passage is that his Honour found that the appellant intended to fire the third shot into the crowded foyer, and that this conclusion was not open on the evidence. Such an interpretation is open, having regard to the second sentence of the second paragraph extracted. However, it has not been, and could not be, suggested that this gave rise to any error in sentencing of the kind identified in The Queen v de Simoni [1981] HCA 31; 147 CLR 383, or that the remark improperly or unfairly affected the selection of the sentence.

90 A further challenge was made to the finding that the second and third shots fired by the appellant were motivated by “anger and desire to seek revenge, particularly on Mr Sua”. In my opinion, these findings were not only open to the sentencing judge, they were almost the only ones available to him. I would reject this ground of the application.

ground 4: discounts for pleas of guilty, counts 1 and 3

91 The finding that only “a notional utilitarian value” could be attributed to the pleas of guilty in relation to counts 1 and 3 was challenged as incorrect. It was submitted that the discount should have been towards the upper range of 25% allowed for the utilitarian value of such pleas. The sentencing judge did not quantify the discount he allowed, but it is clear that it was limited. This is a somewhat unusual circumstance. Given that all offences were part of a single enterprise, once the appellant declined to accept his responsibility in respect of count 2, the utilitarian value of the pleas of guilty in relation to the first and third counts almost evaporated. In any event, I can see no error in the sentences imposed on the first and third counts, and as these are fully subsumed in that imposed in respect of count 2, there is no adverse consequence to the appellant.

92 I would reject this ground of the application.

ground 5: pre-trial custody

93 The appellant served 17 days in pre-trial custody. At the conclusion of sentencing the appellant’s solicitor asked if those 17 days had been taken into account or whether they should be deducted from the eight-year sentence imposed. His Honour said that he had taken it into account in calculating the sentences.

94 In my opinion there was error in this respect. The sentence should expressly have recognised 17 days of pre-trial custody. The appropriate means of doing so was to backdate the sentences so that they commenced on 8 March 2004. I would propose that, to this extent and this extent only, the application for leave to appeal against sentence should succeed.

95 Accordingly, I propose the following orders:

(i) appeal against conviction dismissed

(ii) in respect of the sentence imposed on each count, leave to appeal be granted, the sentence imposed be confirmed save and except that each sentence be specified to commence on 8 March 2004. The earliest date on which the appellant would be eligible for release on parole is 7 September 2009.

96 JOHNSON J: I agree with Simpson J.

97 ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Simpson J and I agree with the orders she proposes.

98 Her Honour summarises the evidence of Ms Hogg and quotes some extracts. I agree with Her Honour that the manner in which the evidence was obtained led to some confusion although, in its entirety, it was not as confusing as some of these extracts standing alone.

99 Ms Hogg is an expert in physics and the measurement of the trajectory of the bullet is a matter within the competence of a range of persons including experts in relevant aspects of applied mathematics, physics and engineering.

100 The problem with the evidence, however, is two fold. Firstly it fundamentally depends on an analysis of the video which analysis is a matter for the jury. The expert, in a matter such as this, may give evidence of angles, possibilities and impossibilities, it is then for the jury to determine from its observation of the film and/or the view and direct evidence whether the angle of the arm accords with a shot in a direction that would render the expert evidence applicable.

101 Secondly, and far more importantly, the defence that relies on the expert evidence does not lead to the conclusion that the defendant urges. Let us assume, without accepting, that it was impossible to shoot directly at the victim from wherever it was the accused was standing. In fact, the victim was shot and the only possibility is that the bullet came from a shot fired by the defendant. Let us, therefore, also assume that the bullet hit the victim after a ricochet for which purpose we must ignore the evidence that, after close examination, there was no damage to any surface consistent with such a ricochet.

102 All of those assumptions do not negate the Crown case. The only negation of the Crown case flowing from the above assumptions would arise if there was a reasonable possibility that the defendant was such an expert that he factored each of the assumed facts into his decision to fire the gun.

103 The Crown case sought to prove that the defendant shot at the victim and the jury accepted it. The fact, if it were a fact, that when he shot at the victim he could have hit him only from a ricochet may only show that the defendant’s expertise as a marksperson is lacking (or extraordinarily good).

104 The evidence is relevant because the Crown bears the onus of proof and the impossibility of the shot rationally affects the existence in the defendant’s mind of the requisite intention to shoot at the victim. But the impossibility of successfully shooting the victim does not make the jury’s verdict unreasonable. It was open to the jury, even if an expert could show clearly that a direct hit on the victim was impossible, to find that the defendant, who was not an expert marksperson and may have been in a state of panic, deliberately shot at the victim. The defendant may not have known that directly hitting the target was impossible or even unlikely.

105 With those additional remarks, I fully agree with the reasons of Her Honour and, especially, the axiomatic nature of the proposition that when a person deliberately fires a gun at another person, she or he ordinarily does so with the intention of inflicting grievous bodily harm. For those reasons I join in the orders proposed.

**********

17/11/2005 - - Paragraph(s)