R v Birchell

[2020] NSWDC 69

District Court

New South Wales

Medium Neutral Citation:	R v Birchell [2020] NSWDC 69
Hearing dates:	13 February 2020
Decision date:	13 February 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Community Correction Order for 2 years.
Catchwords:	CRIME - SENTENCE - accessory after the fact of the discharge of a firearms; which discharge was intended to cause grievous bodily harm.
Legislation Cited:	Crimes Act 1900 (NSW): ss33A(1)(a) and 344
Category:	Sentence
Parties:	Regina (Crown) David Birchell (Offender)
Representation:	Mr Kelly (ODPP Campbelltown) Mr Webb (Counsel for the offender)
File Number(s):	2018/00358298
Publication restriction:	Nil

1. David Birchell, you appear for sentence today in relation to one offence: that is, being an accessory after the fact of the discharge of a firearm, which discharge was intended to cause grievous bodily harm. 

2. This involves a contravention of s 33A(1)(a) of the Crimes Act, in conjunction with s 344 of that Act.

3. The maximum penalty for that offence is 5 years’ imprisonment. There is no standard non‑parole period.

4. The facts surrounding your offending are contained in a document entitled "Agreed Facts" which I think I can usefully summarise as follows.

5. As at July 2018, you were familiar with a man called Dylan Chandler.  Mr Chandler also knew a man called Hayden Pillay. 

6. Mr Chandler and Mr Pillay had, at some point, been co‑residents at the Parklea Correctional Facility and, as sometimes happens between the residents of such a facility, they had their disagreements. 

7. After each of them had been discharged from the correctional facility, they continued their association.

8. Ultimately an incident occurred at Mr Pillay's home unit when a quantity of money went missing and Mr Chandler and Mr Pillay's previously tense relationship flared up.

9. The long and the short of it is that Mr Chandler wanted to teach Mr Pillay a lesson in connection with the money that had gone missing - money that was, in some way, connected with illicit drugs.

10. So it was that, at almost 6pm on 30 September 2018, Mr Chandler sought your assistance to drive him to Mr Pillay's home unit where the lesson was to be effected. 

11. Mr Chandler had with him an object - you did not know what it was - but it was a firearm. 

12. When Mr Chandler got to Mr Pillay's unit, he shot him in the leg. Then Mr Chandler (and a friend who had been travelling with him) came back to your car and you drove them off.

13. Now in all of this Mr Birchell you were providing this service for a small amount of money.  You were supplementing your income by some form of informal Uber driving facility.  You did not know why Mr Chandler was going to this house; and you did not know that he had shot Mr Pillay.

14. When Mr Chandler and his friend got back into your car (having kept you waiting) you still had not seen the firearm; nor did you have any idea what had been done.

15. Up until that point of time, Mr Birchell, you were a completely innocent person in relation to this activity that Mr Chandler had carried out.

16. You then drove Mr Chandler and his friend a very short distance.  About 15 minutes into the journey, and just before you arrived at Mr Chandler's house, your curiosity got the better of you. You asked the question: "What's the big secret?" and (unfortunately for you) you were told.  You were told in colourful language by Mr Chandler that he had just shot Mr Pillay - and shot him because Mr Chandler had been ripped off in a drug deal.

17. Now the law required you to do something at that point Mr Birchell; but what you did was you completed the journey and you dropped them off.  You were under no compulsion to do so; but nevertheless you did - and that is your offending. 

18. In terms of its objective seriousness for an offence of its kind it is towards (if not actually at) the bottom of the range. 

19. You were born in 1973. 

20. You were born to loving parents who raised you properly.

21. For most of your life you have been an outstanding athlete.  You have been a professional boxer at a very high level.  Not only that, you have been an important trainer in that sport. 

22. You have 3 sons whose care you share with their mother - you and she are now separated. 

23. You have had past exposure to illicit drugs but you have given up those abusive substances for some time - and also alcohol. 

24. You have suffered from depression and anxiety for many years but all of this has nothing to do with your offending.

25. You have worked consistently since you left school in year 11 – principally in hospitality, but also in aged care.  (That is in addition to your activities as a boxer: both as a fighter and as a trainer). 

26. In addition to your paid work, you have been an outstanding member of your community. You have engaged at an impressive level with young people.  There is a very impressive reference in this bundle from the manager of the Kurranulla Aboriginal Corporation as to how you have provided guidance and leadership for young aboriginal men through that Corporation. 

27. You have only one prior matter on your criminal history. It was back in 2006 when you were convicted and sentenced for the offence of demanding property or a benefit with threats. In the Brisbane District Court you were sentenced to a term of imprisonment of 3 years and 6 months but which was suspended. So you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.  On the other hand, your prior conviction is not an additional aggravating factor.

28. Because of the nature of your offending, general and specific deterrence are not fully engaged - but they still remain relevant. 

29. Through the various references I have been given (from your parents, your uncle, and other people who know you, including Professor Cumming) I accept that you are remorseful for what you have done.

30. By looking at your contribution to society and your background generally, my assessment of your prospects of rehabilitation is that they are extremely good.  Indeed I would be surprised Mr Birchell, on the material before me, if you ever offended again.

31. The plea of guilty was entered at the first available opportunity and you are entitled to a 25% discount.

32. The Crown has specifically submitted that no sentence other than a period of imprisonment is appropriate - although the Crown has left open the manner in which the period of imprisonment would be served.  I respectfully do not accept that submission.  In other words, I do not accept that no sentence other than a period of imprisonment is appropriate.  Rather, I think that, by reference to the objective seriousness of the offending and your subjective circumstances, you should be subject to a community correction order for a period of 2 years.

33. The standard conditions of a community correction order are that you must not commit any offence and that you must appear before the Court if called upon during the term of that order.  I do not think you require any form of supervision.

34. It is an additional condition of that order that you inform the registrar of this Court, in writing, of any and every change of residential address during the term of the bond.

Decision last updated: 31 March 2020