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 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 had just happened.
The offender, Mr Dimitrov and Ms Avison drove back to a house where Mr Dimitrov and Ms Avison were living, at an address in Theodore. At around 9pm that evening, the offender and the victim had a phone conversation during which they threatened one another. Mr Dimitrov later told the police that during this conversation, the victim had threatened to shoot the offender in the head. Mr Dimitrov told the police that this had made the offender angry.
Following his phone conversation with the victim, the offender called someone else. Approximately 20 minutes afterwards, someone arrived at the Theodore address in a white car. The offender went and opened the back door of the car and “pulled out a long gun”. Minutes later, a group of males including the victim arrived at the street. The car in which the group arrived was parked at a house further down the street. The group then walked down the street towards the Theodore address, where the offender, Mr Dimitrov and Ms Avison were standing in front of the house. The offender was holding the rifle behind his back.
The offender, the victim and Mr Dimitrov argued about the debt. The victim and the group of males he arrived with then turned to walk back to their car. Ms Avison’s evidence to police was that as the victim walked away, he turned around and told the offender, “I’m coming back and I’m going to shoot you in the head”. The offender raised the rifle and fired one or two shots into the air. The victim and accompanying males then started running away up the street towards the parked car. The offender then discharged the rifle another four or five times in the direction of the males as they fled. The victim was struck in the right thigh by one of the bullets. The bullet entered the back of the victim’s right thigh and came out the other side. The victim made it to the car and one of the males he had arrived with drove him to the Calwell Ambulance Station. The victim was then transported by ambulance to the Canberra Hospital.
At the Canberra Hospital, the victim required surgery to address the significant wound to his right thigh. The details of his injury and treatment are as described in the report of Dr Jane Van Diemen dated 13 June 2019. The victim was discharged from hospital on 6 March 2019.
As part of police investigations into the incident, a search warrant was executed on the offender’s home on 18 April 2019. During the search, police seized a 30-30 rifle from a bedroom. DNA analysis of a swab taken from the rifle revealed a mixed DNA profile on the trigger and inside of the trigger guard. The DNA provided extremely strong support for the proposition that the offender was a contributor to that profile.
The rifle has a short, pistol-style stock. An Australian Federal Police forensic firearm examiner test-fired the weapon and was of the opinion that it was the same type of firearm as that which had fired the bullets at the scene.
When interviewed by police, the offender gave a false alibi.
Following the incident, the offender made admissions to a number of people.
There were three trials in the matter. In the first two trials, the jury was discharged.
Objective seriousness
The offending involved intentional discharge of a firearm in the direction of a group of people running away from the offender. The agreed facts involve the discharge of one or two shots into the air and four or five shots in the directions of the fleeing males. The evidence in the trial indicated that the weapon was discharged from waist or hip level, rather than being aimed from shoulder height in the manner of a typical rifle. One bullet obviously struck the victim causing serious injury. Two bullets made contact with locations on residential properties on Freda Gibson Circuit. The incident occurred between 9pm and 10pm on a Saturday evening, a time when it would be expected that residents may be in or around their homes.
There was a degree of pre-planning in the sense of making arrangements for the weapon to be present at the scene of an anticipated confrontation.
The offending occurred in the context of the offender attempting to assist in the enforcement of drug debts.
The offence of committing an act endangering life under s 27(3) of the Crimes Act, which carries a maximum penalty of 10 years’ imprisonment, covers a range of different types of offending. There is no obvious hierarchy as between the different paragraphs of s 27(3). While it is clear that the offence provision can cover offending considerably more serious than that which occurred here, attention needs to be paid to the particular circumstances of the case in order to assess its objective seriousness.
The circumstances of this case involve offending in the mid-range of objective seriousness for this offence.
So far as the possession charge is concerned, s 42(a)(iii) of the Firearms Act covers possession of either one or two prohibited firearms. In this case, the weapon fell within item 12 and item 17 of sch 1 of that Act, which defines what constitutes a prohibited firearm. So far as the item itself is concerned, it is neither at the top nor the bottom of the range of capacity or dangerousness of the items in the schedule. The offender’s conduct is in the mid-range of objective seriousness for this offence.
Subjective circumstances
The offender’s subjective circumstances are set out in a pre-sentence report dated 23 March 2021. The pre-sentence report was prepared in relation to offences of driving while disqualified and drug-driving.
The offender is 34 years old. He suffered abuse from his father as young child. He spent a period of his childhood in a foster home. He is one of 10 children. He does not have a relationship with any of his siblings. He maintains a positive and supportive relationship with his mother who resides in the United States of America. His father is deceased.
He has three biological children to three different women. He has two daughters, one of whom gave evidence in the case. His current partner has a daughter who lives with them. His partner is expecting another child of whom the offender is the father. The offender also has another stepdaughter.
He has stable accommodation with his current partner.
The offender reported to the author of the pre-sentence report that he worked four different jobs and had maintained consistent employment since exiting mainstream schooling in year nine. He commenced but did not complete an apprenticeship as a mechanic and has worked as a trades assistant. He has recently worked as a farm hand. A detailed chronology of his work history was not identified in the pre-sentence report or otherwise.
He has a past history of problematic alcohol consumption. He reported a history of illicit substance use involving methamphetamine. He told the author of the pre‑sentence report that in 2020 he was using methamphetamine on average two to three times each week and claimed to be abstinent from illicit substances for a year. He claimed that his drug-driving was as a result of his drink being spiked.
Under the heading “Leisure/Recreation” the report provided “Mr Cunningham stated he participates in unofficial ‘car meet ups’, where participants undertake illegal ‘burnouts’ and advised he is an avid car enthusiast”.
The offender was assessed by the author of the pre-sentence report as being at a medium to low risk of general reoffending.
The March 2021 pre-sentence report was prepared in a different context. Most obviously it was in a context which did not involve admission of the present offending. Further, there is nothing in the pre-sentence report which indicates that the offender disclosed his membership of the Rebels outlaw motorcycle gang. That membership is disclosed by photographs of him in Rebels colours with other members of that organisation in January 2021. There is nothing in the pre-sentence report to explain why he might have been in possession of a 30-30 rifle. I therefore treat the assessment of the risk of reoffending in the pre-sentence report with considerable caution.
Criminal history
The offender has a criminal history dating from 2008. It contains a number of driving related offences. He has been given custodial sentences in relation to drink-driving and driving while disqualified. He has been given custodial sentences for common assault, stalking, failing to appear and contravention of a protection order. He was given an intensive correction order in relation to drug-driving and driving while disqualified for offences committed on 1 October 2020. The sentence was imposed on 28 May 2021. It was an aggregate sentence of 10 months’ imprisonment served by way of an intensive correction order.
Plea of guilty
The plea of guilty was entered on day seven of the trial. At that stage, the trial was estimated to last at least a further three days. There have been two previous trials, in September 2020 and July 2021, which could not be completed.
Notwithstanding the late stage of the plea, it still had some utilitarian value insofar as it avoided the remaining witnesses giving evidence and saved court time. It is consistent with the policy behind s 35 of the Crimes (Sentencing) Act2005 (ACT) that the offender receives some reduction in sentence because of his plea, albeit a modest one.
The defence case was not conducted in a manner which warrants any reduction of sentence under s 35A of the Crimes (Sentencing) Act.
Time in custody
The offender surrendered himself to police on 1 May 2019. He was granted bail on 30 March 2020. On day six of this trial, the offender was arrested on allegations of driving related offences. He has therefore been in custody since 29 November 2021. However, the day in custody upon which he was arrested on those other charges is not referable to the current offending. He has therefore spent 337 days in custody prior to today referable to the current offending.
Consideration
The offending involved the discharge of a prohibited firearm in circumstances which arose out of the offender involving himself in the enforcement of a drug debt. There was no need for him to insert himself in this role. There was some provocation. The offender has a criminal history but not one which discloses this precise form of offending. It is mainly driving related. This offending represents a significant escalation for him. He has demonstrated no remorse. Notwithstanding the brevity of the description in the pre‑sentence report, I accept that his childhood was difficult and that this is likely to have shaped the person he is today. However, the evidence of his personal circumstances from the previous pre-sentence report needs to be treated with some caution because of the absence of reliable information about his involvement with the Rebel outlaw motorcycle gang which existed at the time that the report was prepared, and the absence of any reliable explanation either in the report or otherwise as to why he engaged in the current offending conduct.
I accept that the offender’s desire to have a relationship with his children is a significant motivating factor for him. That is undoubtedly a desirable motivation which would be consistent with there being prospects of rehabilitation. He has not been able to do that successfully in the past largely because of the breakdown in his relationship with the mothers of those children. It is not clear whether he is able to conduct himself in a way that makes that possible in the future. It is not clear how that theme in his life is consistent with his involvement with an outlaw motorcycle gang.
Each of the purposes of sentencing is relevant and must be given some weight. However, in this case the other purposes of sentencing must be given more weight than that given to rehabilitation of the offender. In particular, both specific and general deterrence are very important sentencing considerations. The former because of evidence that he has, since the offending, developed an association with an outlaw motorcycle gang and the latter because of the need to deter possession of weapons, violence and the threat of violence as part of the subculture associated with illicit drug use.
It is clear that the threshold in s 10 of the Crimes (Sentencing) Act is passed in relation to both offences.
The Crown provided a summary of cases involving offending under s 27(3)(d) of the Crimes Act. Those cases demonstrate a common starting point of around four years’ imprisonment in cases involving premeditation and outlaw motorcycle gangs, see: R v Sidaros(No 6) [2021] ACTSC 24; R v Sharp [2019] ACTSC 175; R v Pattman [2017] ACTSC 331. Other authorities relevant to s 27(3)(c) were also referred to. I accept the submission made on behalf of the offender that there was not the kind of premeditation in this case as is demonstrated in those cases. In this case, there was no proven plan to discharge the firearm at all. The steps that the Crown characterised as premeditation were simply steps to arrange for the delivery and possession of the firearm so as to have it available during the interaction with the victim. Further, this is not a case in which any motivation for the offending involved outlaw motorcycle gangs. However, in this case, the obvious risk created by discharging loaded arms manifested itself in the wounding of the victim.
Some additional authorities provided by counsel for the offender demonstrated that sentences for this offence have involved penalties of 21 months (with a starting point of approximately 23 months): R v JF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 December 2013) and two years on one charge and three months on another: R v Nguyen (Unreported, Supreme Court of the Australian Capital Territory, Teague AJ, 4 April 2011).
On the charge of an act endangering life, the starting point is a sentence of three years and four months, reduced to three years and three months on account of the plea of guilty. On the charge of possession of a prohibited weapon, the sentence will be 13 months reduced to 12 months on account of the plea of guilty. The sentence will be cumulative as to six months but otherwise concurrent. This gives a total sentence of three years and nine months (45 months’) imprisonment. It will be backdated to take into account time in custody referable to this offending. That gives a backdate date of 30 December 2020. The non-parole period will be 30 months.
I recommend that when the Sentence Administration Board is considering a grant of parole it consider whether the offender has ceased his association with an outlaw motorcycle gang.
Orders
The orders of the Court are:
1. On the charge of committing an act endangering life (SCCAN2019/3807) the offender is convicted and sentenced to imprisonment for three years and three months commencing on 30 December 2020 and ending on 29 March 2024.
2. On the charge of possessing a prohibited firearm (CC2019/6355) the offender is convicted and sentenced to imprisonment for 12 months commencing on 30 September 2023 ending on 29 September 2024.
3. The non-parole period starts on 30 December 2020 and ends on 29 June 2023.
4. I direct that the Crown file its notice declining to proceed by 4pm on 3 December 2021.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 8 February 2022 |
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