R v Cahill

[2004] NSWCCA 451

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Cahill [2004]  NSWCCA 451 revised - 10/12/2004

FILE NUMBER(S):
2004/2581

HEARING DATE(S):               29 November 2004

JUDGMENT DATE: 29/11/2004

PARTIES:
Regina v Samuel Hefner Cahill

JUDGMENT OF:       Tobias JA Justice Hoeben Smart AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/41/0064

LOWER COURT JUDICIAL OFFICER:     Goldring DCJ

COUNSEL:
(C)   P Power SC
(A)   D Dalton

SOLICITORS:
(C)   S Kavanagh
(A)   John B Hajje

CATCHWORDS:
Firing a firearm in a manner likely to injure a person and possessing an unauthorised firearm - misapprehension as to effect of application of standard non-parole period - possessing unauthorised firearm offence not in worst category yet maximum penalty imposed - sentences manifestly excessive

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Firearms Act 1996

DECISION:
See para 43

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

04/2581

TOBIAS JA

HOEBEN J
  SMART AJ

Monday, 29 November 2004

Regina     v     Samuel Hefner CAHILL

JUDGMENT

1.          TOBIAS JA:  The Court is in a position to give judgment and I ask Smart AJ to give the first judgment.

2.          SMART AJ: Samuel Hefner Cahill seeks leave to appeal against concurrent sentences of imprisonment each comprising a non-parole period of three years, commencing on 23 April 2004, with an additional term of two years, expiring on 22 April 2009, imposed on each of two charges, namely firing a firearm in a manner likely to injure a person contrary to section 93G(1(c) of the Crimes Act 1900 and possess an unauthorised firearm contrary to section 7(1) of the Firearms Act 1996.  The maximum penalty for the former offence was ten years imprisonment, and the maximum penalty for the latter offence was five years imprisonment.

3. The applicant pointed out that both offences could be dealt with summarily under Table 2 of Schedule 1 of the Criminal Procedure Act, unless the prosecutor elected otherwise.  The applicant also pointed out that there was an anomaly under the Crimes (Sentencing Procedure) Act 1999 in that offences under section 7 of the Firearms Act 1996 had a standard non-parole period of three years.

4. Curiously, section 93G(1)(c) was not listed as one of the sections that had a standard non-parole period. With the amendments effected by Act 85 of 2003 there has been a re-arrangement of the firearms offences and an adjustment of penalties, so that the offence of a person possessing an unauthorised firearm is now covered by section 7A(1) of the Firearms Act with a maximum penalty of five years imprisonment, and section 7(1) now provides that a person must not possess a prohibited firearm, and has a maximum penalty of 14 years imprisonment.

5. Section 7A(1) is not an offence to which the standard non-parole period provisions apply. Recently this Court has held that the standard non-parole period provisions apply where an offender has been convicted after a trial (see R v Way[2004] NSWCCA 131 at paragraph 68).

6.          Section 93G(1) creates a number of offences of varying severity.  Where a person is charged with firing a firearm in a manner likely to injure a person, it would normally be expected that the Crown would elect to have the matter proceed in the District Court.  Absent unusual or exceptional circumstances, a sentence of two years imprisonment is likely to be insufficient, and that is the maximum sentence that the Local Court can impose.  It would have been incorrect for the present case to have proceeded in the Local Court.

7.          The applicant owns a rural property with a residence, being lot 1025, Kangaroo Valley Road, Berry.  During June 2003 the applicant entered into an agreement with a builder, Mr B Monaghan, for the latter to carry out building renovations at that residence.  The builder carried out some work.  After the applicant had made two payments, and the builder sought a third payment, disputes arose between them.  The builder was pressing for payment but the dispute dragged on.

8.          About 4.30 pm on 5 November 2003 the builder drove his vehicle to the applicant’s premises.  The builder made several attempts to raise the applicant by knocking on the door, and ringing him on the telephone.  The builder saw that the applicant was asleep in the premises.  The builder returned to his vehicle and drove it closer to the house to create more noise, parking it a short distance from the house.

9.          The applicant came to the front door carrying a shotgun in one hand, with the barrel facing upwards, forcefully telling the builder to get off his property. The applicant walked from the balcony of the house onto the driveway saying that a friend of his had just died, and to get off his property. The evidence established that a close friend had just died.

10.        On reaching the front of the builder’s vehicle, the applicant raised the shotgun in a manner that suggested an intention to fire.  The applicant pulled the trigger but the firearm failed to discharge.  The shotgun was pointed at the passenger side bonnet area, and wheel of the builder’s vehicle.  It was emphasised by Mr Dalton for the applicant, that at no stage did the applicant aim the shotgun at the builder.  Nevertheless, there was always the danger of a ricochet.

11.        The builder reversed his vehicle along the driveway and saw the applicant manipulating the shotgun, raise it and aim at the builder’s vehicle.  When the builder reached Kangaroo Valley Road, about 70 metres from the house, he stopped briefly and started to drive east.  As he was driving past the driveway, the applicant fired the shotgun and some pellets from that shotgun struck the vehicle in the rear driver’s side quarter, or, as the applicant would have it, the gravel was hit and it was the gravel that struck the vehicle.

12.        The builder reported the matter to the police.  On executing a search warrant at the house the police found a gun in an unsafe and unsecure state, leaning against a wall in the study;  three spent 4/10 calibre cartridges were also found in the study area, along with an unspent round in a drawer of a desk.  There was a box containing 13 unspent cartridges in the unlocked garage area.  The applicant does not hold a shooter’s licence and the shotgun was registered in the name of another person who lives in Kangaroo Valley.  That person had lent the weapon to the applicant so that he could deal with snakes.

13.        Having heard of the police search, the applicant attended voluntarily at Surry Hills Police Station.  He waived his right to have a solicitor present at an interview.  During his interview with the police the applicant denied the offences and gave an incorrect version of events.  Subsequently, he admitted the offences and pleaded guilty in the Local Court.

14.        The applicant was born on 26 September 1970.  On 24 June 2003 he was convicted of assault occasioning actual bodily harm and placed on a section 9 good behaviour bond for twelve months.  Thus, he was on a bond at the time of the offence.  This is an aggravating factor.  The remainder of the applicant’s record is of no consequence.

15.        The applicant has been a fairly successful property developer.  He has submitted very favourable references from business associates and people of standing in the community.  He has been active in his support of the efforts to improve the lot of Aborigines.  The sentencing judge referred to the fact that the applicant’s friend, Lee Madden, had died in the week preceding these offences, and that also during that time, or shortly before, a fairly longstanding de facto relationship had broken up;  and he was suffering from migraines.  These matters had affected him.  He was clearly not behaving sensibly when he produced and fired the gun.

16.        The applicant undertook to pay $1515, being the cost of repairs to the builder’s vehicle, and the judge directed that he do so.  The applicant has also settled the builder’s claim against him and paid the amount due.  The applicant wrote both to the builder and the Court, apologising for his actions and expressing his remorse.  The judge regarded the offence of firing a firearm in a manner likely to injure a person:

"as a very serious offence and must be regarded as being almost as in the same category as murder or manslaughter because of the dangerous consequences.  It is an offence which can only be committed without disregard (sic) (?regard) for the public safety which is clearly an aggravating factor.”

17.        While it is appreciated that the judge has used the qualifying word “almost”, he has overstated the position when he described the offence charged as “almost in the same category as murder or manslaughter”.  With these two offences a person is killed, but with the subject offence, no one is injured, but there is the potential for that to happen.

18.        The judge was right to regard the offence committed as a very serious one, meriting stern punishment.  It was fortunate that the builder was not injured, but the experience that he underwent was a terrifying one. 

19.        The judge was correct to direct that the sentences for the two offences be served concurrently.  The judge commented,

“Firearms offences are dangerous .... even keeping an unlicensed firearm, particularly in a way where it is not secured, endangers the public.  Even if the person who has the firearm does not use it, there is always a danger that somebody else will.”

20.        The judge correctly held that the element of general deterrence is particularly important in the present case.

21. The judge was incorrect in holding that the provisions of ss 54A and 54B the Crimes (Sentencing Procedure) Act 1999 standard non-parole periods applied, as there had been no trial (see R v Way supra).  The judge held that both offences were above the midrange for offences of that kind.

22.        The judge correctly found special circumstances.  This was the applicant’s first time in custody, and because of his material success in life, he was likely to receive further unwanted attention and demands from other prisoners. The judge thought that he would have to spend his sentence in some form of protection, and that this would be more onerous. His prospects of rehabilitation were good.  He is most unlikely to re-offend.        

23. Before passing to the specific grounds of appeal, it should be noted that the total sentence of five years minimum with a non parole period of three years for the offence under section 7(1) of the Firearms Act cannot stand.  Five years was the maximum penalty, and this could not be said to be a case falling within the worst category scenario.  It was a case falling in seriousness above the middle of the range.  Although the shotgun was inside the house, it was clearly visible, and left unsecured.  Ammunition was also found in the house.

24. I have already dealt with the first ground of appeal, namely, that the judge erred when he described the section 93G(1)(c)offence as being almost in the same category as murder or manslaughter. For the reasons earlier given, there is no substance in the second ground of appeal, namely, that the judge erred in failing to take into account that this matter could more appropriately be dealt with in the Local Court. It was too serious an offence to be dealt with in the Local Court.

25.        Appeal Ground 3 reads:

"His Honour erred in failing to take into account the question of provocation insofar as the victim’s acts were likely to affect the appellant, given his then vulnerable state of mind and health, even if these factors were unknown to the victim at the time. "

26.        This was not a provocation case.  However, the judge did take into account that the applicant was affected by the breaking up of his close relationship and the death of his close friend.  Appeal ground 3 should be rejected.

27.        Appeal ground 4 reads: 

"His Honour erred in not attributing the full twenty-five percent discount to the utilitarian benefit of the plea of guilty.

28.        The judge gave a discount of 20 percent, and that was, in the exercise of his discretion, more than adequate.  Additionally, the applicant had told a series of lies, denying the offences when first interviewed.  The trial would not have been a long one.  Appeal ground 4 is rejected.

29.        Appeal ground 5 reads:

"His Honour erred in failing to discount and/or discount appropriately the sentence, given the applicant’s remorse upon his plea of guilty.

30.        The applicant subsequently expressed remorse after initially denying the offences.  The judge recorded and took into account the applicant’s expression of remorse.

31.        Appeal ground 6 reads: 

"His Honour erred in taking into consideration, although qualified somewhat by his prior assault charge, the applicant’s prior good character.

32.         This ground is without substance.  The judge made references to the evidence of good character, which had been produced and those references were not minimal.

33.        Ground 7 reads:

"His Honour erred in finding that the damage to the vehicle was caused by the shotgun and chances are that the applicant could well have shot the victim if the vehicle window had been open."

34.         The builder was not sure whether the damage caused to his vehicle was as a result of the pellets striking it, or striking the gravel near it.  In expressing his view, the judge relied primarily on the photographs in evidence.

35.        There was also the evidence of Detective Senior Constable P A Hamilton, that on inspection of the builder’s vehicle, he found 11 marks indentations and chips on the offside rear quarter panel/windows and rear offside door of the vehicle;  an indentation in the offside rear D pillar;  an indentation in the offside rear quarter panel in front of the taillight assembly, and many other marks and one indentation.  Mr Hamilton expressed the view that all of the marks, except two areas of chipped paint on the offside rear passenger door, behind the door handle, were consistent with impact from pellets or ball bearings, and that this would be consistent with shotgun ammunition.

36. The important point is that on any view, whether that advanced on behalf of the Crown or that on behalf of the applicant, pellets landed either on or in close vicinity to the rear section of the builder’s vehicle. There was no alternative to a sentence of full time custody for the offence. The judge was also correct to rule that the offence pursuant to section 7(1) of the Firearms Act 1996 of possessing an unauthorised firearm was above the midrange.

37. At the hearing before this Court, counsel for the applicant relied on the statistics of the Judicial Commission in relation to offences under section 93G(1)(c). The statistics for the higher courts show a small sample of fifteen cases and that 13 percent received sentences of 48 months, 13 percent received sentences of six years and 7 percent received a sentence of nine years. In all, however, they amount to some five cases.

38.        It is true that the sentence imposed falls within the top 33 percent of sentences imposed, but having regard to the facts, a sentence of some severity was  warranted.

39.        Turning to the non parole period, the statistics reveal that 13 percent of offenders received a non parole period of 30 months;  13 percent received a non parole period of 48 months and 7 percent received a non parole period of six years;  but again, there are but five cases.

40.        Counsel for the applicant also relied on the decision of this Court in R v Cicekdag [2004] NSWCCA 357, but that was a Crown appeal and I do not think it gives this Court much assistance. Mr Dalton stressed that his client had already spent some seven months in custody.

41.        Dr Power, SC, for the Crown, submitted inter alia that this was a very serious offence.  He emphasised the danger of the first attempted discharge of the shotgun, and the potential danger from the actual discharge, albeit that at that stage the vehicle of the builder was some 70 metres or so distant from the house.  This applicant had re-offended whilst on a bond, which is an aggravating factor.

42. The judge’s approach to sentencing was influenced by the three year standard non-parole period which applied to the offence under s 7(1) of the Firearms Act.. This led him to impose sentences that were excessive. The judge was right to regard the offence against section 93G(1)(c) as very serious, and the offence against section 7(1) of the Firearms Act as serious.

43.        In my opinion, in all of the circumstances, and taking into account the special circumstances earlier identified, I propose the following orders:

1.          Leave to appeal against sentence granted.

2.          Appeal allowed.  Sentence quashed.

3.          In lieu of the sentence imposed, the applicant is sentenced as follows:

(i)on the charge under section 93G(1)(c) of the Crimes Act 1900 to a term of imprisonment comprising a non-parole period of 2 years and 3 months commencing on 23 April 2004 and expiring on 22 July 2006 and an additional term of 21 months commencing on 23 July 2006 and expiring on 22 April 2008;

(ii)on the charge under section 7(1) of the Firearms Act  a term of imprisonment comprising a non-parole period of 18 months commencing on 23 April 2004 and expiring on 22 October 2005 and an additional term of 15 months commencing on 23 October 2005 and expiring on 22 January 2007.

(iii)the applicant first becomes eligible for release on parole on 23 July 2006.

44.        TOBIAS JA:  I agree with the remarks of Smart AJ.

45.        HOEBEN J:  I agree.

46.        TOBIAS JA:  The orders of the Court will be as proposed by Smart AJ.

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LAST UPDATED:               10/12/2004