R v Do

[2005] NSWCCA 183

CITATION:	R v DO [2005] NSWCCA 183 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27 April 2005
JUDGMENT DATE:	12 May 2005
JUDGMENT OF:	Hunt AJA at 1; Hulme J at 2; Johnson J at 30
DECISION:	See paragraph 29.

PARTIES:	Regina Ly Do
FILE NUMBER(S):	CCA 2004/3227
COUNSEL:	Crown: P Ingram Respondent: P Boulten SC
SOLICITORS:	Crown: S Kavanagh Respondent: SE O'Connor

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1130
LOWER COURT JUDICIAL OFFICER:	Tupman DCJ

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2004/3227

HUNT AJA
HULME J
JOHNSON J

Thursday 12 May 2005

R v Ly DO

Judgment

1 HUNT AJA: I agree with Hulme J.

2 HULME J: This is an appeal by the Crown against sentences imposed on 4 November 2004 by Judge Tupman on the abovenamed Respondent in respect of 2 charges, viz.:-

(i). That on 17 April 2004, in company, he maliciously inflicted grievous bodily harm upon Kevin Black.

(ii). That on the same day he used a firearm, namely a .22 calibre Ruger semi automatic pistol fitted with silencer and laser sight, without being authorised to do so by a licence or permit.

3 The first of these offences exists by reason of Section 35(2) of the Crimes Act and rendered the Respondent liable to imprisonment for 10 years. The second offence arose under Section 7(1) of the Firearms Act 1996 and carries a maximum penalty of 14 years imprisonment.

4 In respect of the first offence, Judge Tupman sentenced the Respondent to imprisonment for 2½ years including a non-parole period of 18 months, both periods commencing on 17 April 2004, the date when he was arrested. Her Honour directed that, at the expiration of the non-parole period, the Respondent be released on parole subject to conditions. In respect of the second offence her Honour sentenced the Respondent to a fixed term of imprisonment of 12 months commencing on 17 April 2004.

5 The Crown has appealed upon the ground that the “sentence” imposed is manifestly inadequate although the Notice of Appeal refers to both sentences. In submissions made to the Court the Crown contended that the overall sentence imposed inadequately reflected the objective seriousness of the offences, individually and cumulatively. The Crown also contended that her Honour’s remarks on sentence exhibited patent error “in holding that authority precluded her from finding otherwise than that the Respondent had acted recklessly”.

6 In support of the first aspect of these submissions the Crown drew attention to the terms of s21A of the Crimes (Sentencing Procedure) Act and to a number of particular matters:-

· The use of a weapon – cf s21A(b)

· The harm inflicted was substantial – cf s21A(g)

· The disregard of public safety – cf s21A(2)(i)

· The victim, a security officer was vulnerable by reason of his occupation – cf s21A(2)(l)

7 Referring to R v Doorey [2000] NSWCCA 456 at [24] the Crown also relied on the fact that the offence was committed at night.

8 According to a document entitled “Agreed Facts” tendered in the sentencing proceedings, on the night of 16-17 April 2004 the Respondent was with a group of men at the Sol Bar Night Club in Surry Hills. At about 1.00am a security officer, Mr Wilkoszewski observed the Respondent to be intoxicated, that he appeared to have vomited, and asked him to leave the night club. The security guard removed alcohol which the Respondent was attempting to take out with him. Soon after other persons with whom the Respondent had been drinking were also ejected in circumstances of some acrimony. In the course of this, one of the group was heard to say “get the gun” and seen to put his hands down the front of his pants. Upon seeing this, Mr Wilkoszewski hit this person in the jaw and a scuffle broke out until police were sighted nearby. The group left the area again one of them being heard to say “come on let’s get the gun”.

9 A little time later a bystander who was waiting for a friend saw the Respondent and two other Asian persons walk past in a nearby laneway. The Respondent was holding a handgun and wrapping a towel around it. The Respondent then returned to the vicinity of the nightclub in the company of two members of the group and pointed the .22 calibre pistol at Mr Wilkoszewski saying “what the fuck are you going to do now?” Another member of the group said something similar and an apology was also demanded. Mr Wilkoszewski then approached one of the members of the group at which stage the Respondent pointed the weapon at another security guard, Mr Black.

10 After some further short conversation and at a time when the Respondent was pointing the weapon at Mr Black’s face, the latter lunged towards the Respondent, grabbed the barrel of the weapon and pointed it down. A member of the group identified as the “Caucasian male” moved towards Mr Black, Mr Wilkoszewski struggled with the Caucasian, the Respondent pulled the weapon up and fired two rounds, wounding Mr Black in the leg. Mr Black collapsed to the ground, as he did so diving on top of the gun which had also fallen.

11 Another member of the group intervened in a struggle then going on between the Respondent and Mr Black. Mr Wilkoszewski noticed the Respondent reaching for the weapon and grabbed the Respondent, holding him until police arrived. The other members of the Respondent’s group escaped.

12 The injuries suffered by Mr Black included a fractured left femur and vascular injury.

13 Other evidence was to the effect that at the Surry Hills Police Station at about 3.30 that morning when asked what had happened, the Respondent remarked that he could not remember. Later, when asked if he wanted to be interviewed he declined. At the police station he was also observed to be very emotional and crying and, when talking to his mother sobbing uncontrollably.

14 The Respondent pleaded guilty in the Local Court on 7 September 2004 although due to some error in process he was arraigned in the District Court where he repeated that plea. Her Honour accepted that the pleas were entered at the first reasonably available opportunity and said that a discount of about 25 to 30% was appropriate to allow on this account.

15 The Respondent was born on 10 September 1982 and had no prior criminal record. He presented an impressive subjective case indicating that although he received a disappointing mark in his Higher School Certificate he had pursued regular employment and study since leaving school apart from two visits overseas. He has a supportive girlfriend and family and had been living with his mother up to the time of his offence. He would seem to have been affected emotionally some years earlier when a younger brother had died but there was no evidence to link that event or its consequences with the offending.

16 During the sentencing proceedings the Respondent himself gave evidence. He said the reason for going out on 17 April was a farewell party for a girl who was leaving his place of employment and a number of people from his work went to the Captain Cook Hotel at about 8pm. There he had three or four schooners, leaving at about 9pm and arriving at the Sol Bar at about 9.30pm. He said that at the Sol Bar also he was drinking with work colleagues. Asked, “men and women?” he said “I think just women, I think, or – I can’t remember if there was just men with them or not”.

17 The Respondent said that he continued drinking and had been told by a friend Preston Tse who was with him on the night that he had something of the order of fifteen schooners and six tequilas that night. The Respondent said that due to the impact of alcohol he had no recollection of any of the later events including eviction from the bar, an argument with the security guards, obtaining possession of the firearm, and of the shooting. He said that he had not had a gun with him that night and, to his knowledge, neither did Preston. He had never previously owned, handled or fired a gun.

18 In cross-examination, the Respondent said that he normally drank one or two beers and his drinking was only occasional, probably once a month or so. He said that he had been as drunk as he was on the night of the shooting on only one prior occasion, viz his 21st birthday. Somewhat surprisingly in light of this history he had been asked by his own counsel if he had had some assistance with alcohol issues since being in custody, whether he had any other drug issues apart from alcohol, whether his alcohol problem was mainly binge drinking and whether he thought he would benefit from some assistance from an alcohol counsellor when released from custody. The Respondent’s answer to the first of these questions was to the effect that a drug and alcohol counsellor had helped him a lot, to the second that he had no other drug issues, the transcript records that there was no verbal reply to the third and to the fourth the Respondent replied “Yes”.

19 The Respondent’s father also gave evidence indicating that the Respondent had not been a problem and had never been in any sort of trouble. There was a deal of evidence of genuine remorse.

20 In her remarks on sentence, Judge Tupman observed, inter alia:-

“It has been argued on behalf of the Crown that I would not accept that he was intoxicated to the level he claims. I do accept this is his evidence and I do accept that he was intoxicated to the level he claims to the extent that that is the reason why he cannot remember the events surrounding this offence. … I accept that his level of intoxication played a significant part in his actual commission of the offence…
There is no evidence, and indeed it would be contrary to the principles for me to make a finding that at the time he did so, he intended to cause grievous bodily harm to Mr Black. I accept that in fact when he pulled the trigger he did so recklessly and that that recklessness in large part was brought about because of the level of intoxication. I accept that this firearm did not belong to the Prisoner and for reasons that I will come to in due course there is nothing in the evidence that would enable any finding that he was the sort of person who was likely to be able to source such a firearm or in fact moved in circles where he could get access to such a firearm. I accept more probably than not that because of his level of intoxication that night, after being ejected from the Bar he fell in with a group of people with whom had been drinking during the earlier part of the evening and went with them whilst one or other them gained access to the firearm. That was a threat that one of the others had made. He then took the firearm and came back and behaved in the way that I have outlined…
The commission of the offence is aggravated by the fact that it was a firearm used to inflict the grievous bodily harm. There were also a number of members of the public standing around this entrance to a nightclub at that time of the morning. They were put at risk. That is an aggravating feature. ….
I accept that a significant factor in his commission of these offences was the amount of alcohol that he had drunk that night … and that that was out of the ordinary. I also accept that behaving in a violent manner was very much out of character and out of the ordinary for this young man.”

21 In her remarks on sentence Judge Tupman indicated that she accepted the substance of the case presented on behalf of the Respondent. In particular she accepted that he was intoxicated to the level he claimed, that that was unusual and that that level of intoxication played a significant part in his commission of the offence. She said that there was no evidence to enable a finding that he was the sort of person or moved in circles where he could get access to a firearm and his possession of it on the night was probably due to falling in with a group of people with whom he had been drinking. Her Honour accepted that behaving in a violent manner was very much out of character for the Respondent.

22 Judge Tupman said she accepted that the Respondent’s expressions of remorse were genuine and that she had found his father’s evidence impressive. Her Honour also indicated that she accepted evidence that at the time of the shooting the Respondent had prospects of obtaining work in a chosen field of graphic design, and that his future looked rosy – matters which, I may add, the Respondent has lost, at least for a substantial period, due to his offence.

23 I turn then to the specific matters raised by the Crown. Remarks I have quoted indicate that there is no substance in a submission the Crown made to the effect that her Honour had held “that authority precluded her from finding otherwise than that the Respondent had acted recklessly”. What her Honour did was to correctly recognise that, in light of the terms of the charge, she was precluded from finding an intention to cause grievous bodily harm. The finding that the Respondent acted recklessly was one which was open to her.

24 Her Honour specifically referred to a number of the particular matters to which the Crown referred in the context of Section 21A of the Crimes (Sentencing Procedure) Act and I see no basis for concluding that her Honour was not conscious of the others. They were so obvious that they could not have been overlooked. Nor do I see any error in her Honour’s decision to make the sentences concurrent. The Respondent’s use of the firearm was little more than that which constituted the other offence with which he was charged. Ultimately it seems to me the Crown’s appeal must stand or fall on this Court’s view of whether, given the circumstances of the offence and despite the findings her Honour made favourable to the Respondent, it could be said that the overall sentence was manifestly inadequate.

25 In my view it was. Pointing a loaded firearm at anyone is both dangerous and, because of the danger, very serious. When done in circumstances of aggression or, if not aggression, as an exercise of domination over others such conduct is even more serious. A fortiori is this so when the holder of a weapon is intoxicated, liable to be suffering from the lack of judgment or control common to that state, or the circumstances are pregnant with the possibility of other physical violence or unpredictable conduct by any of those present.

26 And despite her Honour’s findings that intoxication was a major factor in the Respondent’s commission of the offence, he was apparently sufficiently in possession of his faculties to seek to conceal the firearm in a cloth – a fact which indicates he knew he should not have it – and to make the demand on Mr Wilkoszewski, “What the fuck are you going to do now?” and to differentially aim the weapon at the 2 security guards.

27 The risks and dangers inherent in the Respondent’s conduct, and the interference with the rights and liberties of others are such that no civilised society can permit such actions. While her Honour’s findings lead to the conclusion that the Respondent is unlikely to re-offend, considerations of general deterrence and retribution require that any sentence for conduct such as his, particularly when serious injury is in fact caused, be substantial.

28 As I have indicated, in my view the overall sentence imposed on the Respondent was manifestly inadequate. So was that imposed on the more serious charge. This is, of course, a Crown appeal and even when the Court regards a sentence as manifestly inadequate constraints exist on its power to interfere. However, such was the Respondent’s offending and so great the inadequacy of the sentence imposed by Judge Tupman that the Court should allow the appeal and, taking into account the element of double jeopardy necessarily involved in a Crown appeal, re-sentence the Respondent on the charge of maliciously inflict grievous bodily harm.

29 Judge Tupman made a finding that there were special circumstances and the Crown has not suggested her Honour was in error in that respect. Accordingly, I favour the following orders:-

1 The Crown Appeal is allowed.
2 The sentence imposed on the Respondent by Judge Tupman on 5 November 2004 in respect of the charge of maliciously inflict grievous bodily harm be quashed.
3 In lieu thereof, in respect of that charge, the Respondent be sentenced to imprisonment for a non-parole period of 2 years and 6 months commencing on 17 April 2004 and a balance of term of 18 months commencing on 17 October 2006, i.e. a total sentence of imprisonment of 4 years.
4. The concurrent sentence imposed on the Respondent by Judge Tupman on 5 November 2004 in respect of the charge of using a firearm, namely a .22 calibre Ruger semi automatic pistol fitted with silencer and laser sight, without being authorised to do so by a licence or permit is confirmed.
5. Record as the earliest date upon which it appears that the Respondent will be eligible for release on parole, 17 October 2006.

30 JOHNSON J: I agree with Hulme J.

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18/05/2005 - Counsel appearing reversed - Paragraph(s) n/a