R v Cunningham (No 3) - [2021] ACTSC 326

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cunningham (No 3)
Citation:	[2021] ACTSC 326
Hearing Date:	2 December 2021
DecisionDate:	2 December 2021
Before:	Mossop J
Decision:	See [41]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – act endangering life – discharging a loaded firearm so as to cause another person reasonable apprehension for his safety – unauthorised possession of a prohibited firearm – offender pleaded guilty on day seven of jury trial – mid-range of objective seriousness – importance of general and specific deterrence – where offender is a member of an outlaw motorcycle gang – where there is a need to deter violence associated with illicit drug use – sentences of imprisonment imposed
Legislation Cited:	Crimes Act 1900 (ACT), s 27(3) Crimes (Sentencing) Act 2005 (ACT), ss 10, 35, 35A Firearms Act 1996 (ACT), s 42(a)(iii), sch 1
Cases Cited:	R v JF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 December 2013) R v Nguyen (Unreported, Supreme Court of the Australian Capital Territory, Teague AJ, 4 April 2011) R v Pattman [2017] ACTSC 331 R v Sharp [2019] ACTSC 175 R v Sidaros (No 6) [2021] ACTSC 24
Parties:	The Queen ( Crown) Christopher Cunningham ( Offender)
Representation:	Counsel M Dyason ( Crown) M Jones SC ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) O’Connor Harris ( Offender)
File Numbers:	SCC 214 of 2019 SCC 270 of 2019

MOSSOP J:

Introduction

On 30 November 2021, on the seventh day of a jury trial, the offender, Christopher Cunningham, pleaded guilty to one count of an act endangering life contrary to s 27(3)(d) of the Crimes Act 1900 (ACT) (SCCAN2019/3807) and one count of unauthorised possession of a prohibited firearm contrary to s 42(a)(iii) of the Firearms Act 1996 (ACT) (CC2019/6355). The act endangering life was particularised as being that the offender discharged a loaded firearm at the victim so as to cause another person reasonable apprehension for his safety. Each offence carries a maximum penalty of 10 years’ imprisonment.

Facts

The facts are agreed and are, in summary, as follows.

Early in the evening of 2 March 2019, the offender was introduced to Alex Dimitrov and Sarah Avison. The group discussed the fact that Magdalena Goldyn owed Mr Dimitrov a drug debt. Ms Avison drove the offender and Mr Dimitrov to Ms Goldyn’s house at a location in Chisolm. At the house, the offender spoke to Ms Goldyn and told her that he was there to collect the $600 owed to Mr Dimitrov. Ms Goldyn told the offender that she did not owe Mr Dimitrov any money because the debt had already been settled with the victim, a man in his thirties. The offender said to her “this will get very ugly, very quickly for you”. Ms Goldyn told the offender that the victim was on his way to Mr Dimitrov’s house. The victim called Ms Goldyn and she explained what…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cunningham (No 3)

Details

AGLC: R v Cunningham (No 3) [2021] ACTSC 326
Case: [2021] ACTSC 326
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Christopher Cunningham was convicted and sentenced for the charges of discharging a loaded firearm in a manner that endangered life and for the unauthorised possession of a prohibited firearm. Cunningham had pleaded guilty on the seventh day of a jury trial, which had previously been discharged on two occasions. The court had to determine the appropriate sentence for these offences, taking into account the objective and subjective circumstances, the offender's criminal history, his plea of guilty, and the time he had already spent in custody.

In assessing the objective seriousness of the offending, the court found that it fell in the mid-range. The offending involved the intentional discharge of a firearm towards a group of people, with one bullet striking the victim and causing serious injury. The court also considered the context of the offending, which involved the offender attempting to assist in the enforcement of drug debts. The court concluded that the purposes of sentencing, particularly specific and general deterrence, were important considerations in this case due to the offender's association with an outlaw motorcycle gang and the need to deter violence and possession of weapons associated with illicit drug use.

Based on the objective seriousness of the offending, the court determined a starting point of three years and four months for the charge of endangering life, reduced to three years and three months due to the offender's guilty plea. For the charge of possessing a prohibited firearm, the court set a starting point of 13 months, reduced to 12 months due to the guilty plea. The total sentence was set at three years and nine months (45 months) imprisonment, backdated to take into account the time Cunningham had already spent in custody.

The court's final orders were as follows:

1. Cunningham was convicted and sentenced to imprisonment for three years and three months for the charge of committing an act endangering life, commencing on 30 December 2020 and ending on 29 March 2024.
2. Cunningham was convicted and sentenced to imprisonment for 12 months for the charge of possessing a prohibited firearm, commencing on 30 September 2023 and ending on 29 September 2024.
3. The non-parole period was set to start on 30 December 2020 and end on 29 June 2023.
4. The Crown was directed to file its notice declining to proceed by 4pm on 3 December 2021.

Orders