R v Ingvarsson , Ingi and Dhillon, Khushwant

[2008] NSWDC 142

CITATION:	R v Ingvarsson , Ingi and Dhillon, Khushwant [2008] NSWDC 142
JUDGMENT DATE:	18 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Possess prohibited weapons - 2years non parole period; 2 years balance of term; discharge firarm with disregard for safety of others - 2 years non parole period (partly cumulatiave) - balance of term 1year. see paragraphs 75 - 77.
CATCHWORDS:	Criminal Law - Sentencing - possession prohibited weapon - discharge firearm with disregard for safety of others - public street near McDonalds - unregistered firearms - mid-range of seriousness - nature of criminality.
LEGISLATION CITED:	s. 32 Crimes (Sentencing Procedure) Act 1989 Firearms Act 1996 s.93 G Crimes Act 1900
CASES CITED:	R v Rushby [1977] NSWLR 597 R v Cuthbert [1967] 2 NSWR 329 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Ingi Runar Ingvarsson Khushwant Sing Dhillion
FILE NUMBER(S):	2007/00014228; 2007/00012497
SOLICITORS:	Mr C. Brown, Crown Mr C. Watson

JUDGMENT
1. Some of the entrances to the Royal Oak Hotel in North Parramatta open onto Ross Street. This is a small commercial area with a couple of single storeyed commercial premises and a couple of what might be described as multi-storeyed (but by that I do not mean large, perhaps two or three floors) buildings. From the photographs it is clear that on the night the offence I am about to refer to occurred, a number of motor vehicles were parked along the kerb, some opposite the pub, others further down in each direction.

2. To the left of the entrances across the street are the twin arches of an illuminated McDonald’s sign. The McDonald’s exit or entrance or both seems to connect to Ross Street. About 9pm on Thursday 12 April 2007 a number of police were having a meal break at that McDonald’s. One, whether by accident or design, was a little later than the others. His account will become important. A number of gunshots in circumstances to which I shall shortly come rang out.

3. Ingi Ingvarsson and Khushwant Dhillon were each responsible for firing a firearm with a disregard for the safety of other people in Ross Street, Parramatta. They were also criminally responsible for possessing a prohibited pistol in circumstances where they were not authorised by licence or permit so to do. Today each is to be held accountable for his criminal conduct. Ingvarsson asked that two further matters be taken into account on a Form 1 pursuant to section 32 of the Crimes (Sentencing Procedure) Act when sentenced for the possession of the pistol. Dhillon also asked that I take into account on a Form 1 his possession of an unauthorised pistol in circumstances of aggravation a charge that I must say does not entirely make sense to me given the principal charge against him.

4. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this Court committed by these offenders breaking the law in this community as they have done. My initial task requires an assessment of objective criminality of the offences before the Court. I will also need to have regard to matters personal to each of them, that is their subjective matters.

5. The starting point for such assessment requires a sentencing judge to make finings of fact from the evidence before the Court relating to the offence and to the offenders. An agreed set of facts was tendered and I shall shortly return to it. But other documents were also tendered from which I have drawn other findings of fact. It is sufficient at this point in time that I remind the Court a judge is not a party to any agreed set of facts. That agreement exists only between the parties on the other side of the bar table. The tender of agreed facts does not relieve a judge from his fact finding responsibility, usually it simply limits the material from which facts may be found. In this case further material was tendered and I have used it.

6. Each offenders’ rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, parity, whether one of these offences attracts the standard non-parole period and if so the length of the parole period and finally of course the ultimate length of term of imprisonment or other penalty to be imposed.

7. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that all sentencing should have as primary focus the protection of the community, will also need to be determined, see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740. The agreed set of facts is the same in each case.

8. About 9.01 on Thursday 12 April 2007 an unknown male entered the Royal Oak Hotel located at the corner of Ross and Church Streets, Parramatta. This male entered via the Ross Street entrance and walked into the rear bar. He walked around the rear bar area for a short period of time before standing in the doorway entrance. He spoke to a further two unknown males standing outside the hotel. All three males entered the hotel and approached the accused Ingi Ingvarsson who was standing at a rear bar. Outside the hotel a further two males appeared immediately outside the Ross Street doors. These men signalled in a westerly direction along Ross Street and a further eight males attended the Ross Street entrance door.

9. While all this was occurring outside, there is CCTV footage obtained from the Royal Oak Hotel of events occurring inside. The initial male who entered the hotel is to be seen speaking with other patrons near Ingvarsson. Khushwant Dhillon seemed to approach the other group of males whilst in possession of a Norinco 9mm self-loading pistol held in his right hand. Not surprisingly that caused the unknown males to exit via Ross Street. Ingvarsson at this stage, said to be unarmed followed the males into Ross Street. Ingvarsson is pulled back into the hotel by someone. During that period of time the unknown males have commenced to walk away from the hotel in different directions, some in a westerly direction along Ross Street.

10. Ingvarsson returns to the rear bar and approaches Nua Maile. Ingvarsson appears to take something from Maile and returns to Ross Street. Ingvarsson exits the hotel and at this stage is armed with a Colt .45 calibre self-loading pistol. Ingvarsson is clearly depicted on obtained CCTV footage as discharging his pistol in a westerly direction along Ross Street. Ingvarsson ceases to discharge his pistol and Dhillon then discharged the pistol in his possession in the same direction. While Ingvarsson and Dhillon were discharging their pistols an alleged co-offender Maile is standing at the rear bar area in the immediate vicinity of the rear doors.

11. Once Ingvarsson and Dhillon cease discharging their respective pistols Dhillon is seen to pick up spent cartridges fallen from the footpath. How many were collected is unknown. What happened to them is unknown but I have used that fact to make findings of other facts later on.

12. Both males re-enter the hotel and meet up with Maile. The three and other unknown males walk through the interior of the hotel into the beer garden. The three walk through the beer garden and out onto Ross Street. Meanwhile a number of police present at McDonald’s restaurant diagonally opposite the Royal Oak hear or have heard the shots fired and run into Ross Street. One, Constable Power, ran into Ross Street, passed the three alleged offenders and a further Daniel Murphy. Murphy was in the company of Ingvarsson, Dhillon and Maile.

13. Constable Power as he passed sighted the Colt pistol tucked into the front of Ingvarsson’s pants and noted he was holding the grip of the pistol. Constable Power ran to the Royal Oak to ascertain if anyone had been shot. It is fair to say on Constable Power’s account, he was hardly welcomed at the Royal Oak. Constables McCrea and Blanchard ran across Ross Street and observed Murphy driving a green Toyota with Ingvarsson, Dhillon and Maile as passengers. Power then returned from the pub given he could not get in and assisted McCrea and Blanchard to make what is called an armed and dangerous vehicle stop. I understand this is a set police procedure. Constables Blanchard and Power stood in front of the vehicle with guns drawn as it tried to drive away. Those weapons were pointed at the occupants of the vehicle. Ingvarsson was the front passenger, Dhillon sitting behind Murphy and Maile behind Ingvarsson.

14. Police directed Murphy to stop the vehicle. As a result Murphy appeared to comply by raising his hands and the vehicle stopped. At this time Ingvarsson moved his right leg across the centre console towards the accelerator pedal causing the vehicle to accelerate and jolt forward. Police were still yelling at the occupants to stop the vehicle. As a result of the jolt forward Blanchard was struck by the vehicle in the upper thigh causing him to be lifted onto the bonnet. The vehicle movement ceased, probably as suddenly as it began and Blanchard fell back on his feet. During this time Ingvarsson was heard to say, “Run the fucking cunt over”. Ingvarsson ceased using his leg and lent across and put his hand into the driver’s foot well. On this occasion the vehicle revved but it did not move. It would seem to me someone must have put it into neutral.

15. A short time later occupants were removed from the vehicle. The colt .45 self-loading was observed sitting on the passenger seat where Ingvarsson had been taken from. It was identified by Constable Power as the one previously in Ingvarsson’s possession. There does not appear to be any dispute about that. The occupants were placed under arrest, conveyed to Parramatta police station and entered into custody. A solicitor attended and spoke with each of these offenders and Murphy. They declined to be interviewed as was their right. They all consented to providing DNA samples and Ingvarsson and Dhillon submitted to GSR testing presumably for gun powder.

16. At the scene the vehicle being driven by Murphy was searched and the Norinco 9 millimetre self loading pistol was located beneath the driver’s seat. It had one bullet in the chamber and five still in the magazine. This pistol previously had the serial number ground off it. A Colt 45 automatic calibre self-loading pistol was inspected. It did not contain any bullets in the breech or magazine. This pistol did not have a serial number displayed. Ingvarsson and Dhillon were charged.

17. At the time of the shooting a number of vehicles were parked in Ross Street, Parramatta. Opposite the Royal Oak is a busy entry point for the North Parramatta McDonald’s restaurant. Ross Street is used by patrons of the hotel and North Parramatta businesses and restaurants. As a result of the shots fired by the offenders a Subaru motor vehicle, a tree and a business sign, all west of the hotel, were hit by projectiles. In addition a projectile entered the beer garden court of the hotel. A Subaru vehicle had been parked in Ross Street at about 8pm, whilst the owner of that car attended a local Chinese restaurant.

18. Outside the hotel, in the vicinity of the footpath, were four 45 calibre cartridge cases and two 9 millimetre calibre cartridge cases. My view is that there had been others fired but those cartridge cases had been collected and somehow disposed of. A copper jacketed bullet was also located on the Ross Street roadway near the gutter in the vicinity of where the shots were fired. Metal fragments were found in the right headlight of the Subaru vehicle, near the driver’s door on the ground and near the front right head light and to the front of the right side of the vehicle. There was damage to the vehicle’s windscreen and to the driver’s and passenger’s side windscreen pillars. There was a hole in an overhead business sign and a bullet had hit, a few feet from the ground, the trunk of a tree, which was situated on the footpath. The bullet was retrieved from the trunk. An impact damaged copper jacketed bullet was found on the floor of the beer garden. Also in the beer garden there was damage to the freshly painted brickwork on the wall just above one of the ground level windows. The damage had been occasioned by impact with a small object, namely the bullet. That ends the so-called agreed facts.

19. Neither Ingvarsson nor Dhillon gave evidence of their versions. Each supplied a written statement. The statement was tendered without objection. It was not subject to cross-examination. Each gives in his statement an account of his claimed circumstances of the offence. There is a consistency between the accounts. While the Crown has not sought to cross-examine on the statements, an entirely usual procedure on sentencing when statements of accused are tendered, the statements are for that reason unchallenged.

20. I do note though that constable Brett Power gives a version of events totally different from each of the offenders. His version was compiled on the night of the incident. Consequently some of the findings of fact I make arising from his statement include these: I do not find and do not accept that Ingvarsson arrived at the pub to drive Dhillon home because he was over the limit. Constable Power claims to have seen Ingvarsson and Dhillon arriving or at least coming to the pub together with Murphy and Maile. I do not accept that Ingvarsson had second thoughts about going to the pub but went there with the three others. Ingvarsson claims to have taken a weapon from home. The Crown case seems to be that he was supplied a weapon. I am satisfied he took the weapon from home. Ingvarsson claims to have been rung by Dhillon. Dhillon says he did ring him. While I do not accept the purpose of the call, namely to drive me home because I am drunk, I do accept that such a telephone call occurred.

21. I do accept, and it may be important to understand, that Dhillon is a member of a motor cycle club known as the Bandidos. Ingvarsson’s status in respect of this club or any other club is unclear. However it is safe to say he knows Dhillon as his martial arts instructor, was happy to associate with him in that capacity and also in the capacity of his being a member of the club and was interested in and sympathetic to that club’s aims and programs. It is also important to acknowledge each man had been subjected to serious physical violence at the hands of several men very likely associated with another motor cycle club or a criminal gang and quite possibly some of whom were included among the group that arrived at the hotel.

22. Initially Dhillon was at the pub on the sworn evidence with one Ibrhim Sengos. Sengos claimed an appointment was made with Dhillon to discuss his financial needs, that is his - Dhillon’s financial needs in the hotel. For my part I did not find him an impressive witness, nor do I accept that Dhillon initially went to the Royal Oak in circumstances where Ingvarsson was not there and not to be there. I doubt very much whether Sengos played any part in Dhillon being at the pub.

23. Dhillon says in his statements it was not his intention when he went to Parramatta of harming anybody. It would be more accurate to say he may not have been expecting trouble (but I am unprepared to find that is so) but he was armed with a weapon and was prepared to use it if necessary. Of course in fairness it should be noted no person was harmed. I am satisfied he noticed and felt threatened by the build-up in the number of males who were apparently part of a group who were not recognised as usual patrons of the Royal Oak and who appeared to arrive in separate groups, that is, slightly staggered arrival. I do accept constable Power’s observations as far as they went; but Power was driving to the restaurant, the McDonald’s restaurant and may not have seen the other man arriving. I am satisfied Ingvarsson became aware of Dhillon’s concern and I have not ruled out that he may well have been there because of Dhillon’s concern. I am satisfied it was the build-up of the males that constituted a threat and indeed a real threat to Dhillon. As to whether anything was supplied to Ingvarsson by Maile that has anything to do with the later discharge of the weapon I cannot say, but if it was it is more likely to have been a magazine than anything else.

24. I am satisfied Ingvarsson came knowing he would have access to a pistol at the pub, whether that was in circumstances that he brought it or it was subsequently supplied to him I have fought long with, but I have decided that he brought it. He admits bringing it. It seems silly to reject his admission. I am unable to determine how many rounds were discharged by either offender. It is likely the magazine of each pistol was fully loaded but I cannot be satisfied of that beyond a reasonable doubt.

25. I am satisfied beyond reasonable doubt that Ingvarsson fired off at least four rounds. I am satisfied beyond reasonable doubt that Dhillon fired off more than two rounds but it would seem if my knowledge of the pistol is right less than six rounds. I am assuming that the total number of rounds in the magazine is eleven but I may not be right on that. I am satisfied that some shots were fired into the air but that other shots were fired at a level so that the projectile travelled within six feet of the ground. I have not ruled out that the Subaru was targeted as a potential vehicle for the men that were running away. I cannot though be satisfied beyond reasonable doubt of that.

26. I cannot be satisfied that either shooter aimed his weapon at any person or persons. I cannot be satisfied either fired with any intent to harm. I am satisfied though that the weapons were discharged to convey a hostile message to the group of males. I am satisfied the discharge of the weapons and the hostile message was consistent with the desired macho ethos of the motor cycle club to which Dhillon belonged. I am satisfied it was designed to intimidate a group of males with a view to discouraging the group from bothering, threatening or harming Dhillon or any other member of the club and probably including Ingvarsson.

27. I am not satisfied on the balance of probabilities that the account given of the offence in either offender’s statement is reliable. I am satisfied the account given by Brett Power completed on the night of the offence is correct as far as it goes as to the arrival of the four men, including Ingvarsson and Dhillon together and in circumstances where their arrival was close to the arrival of the first three persons of Middle Eastern appearance. I am satisfied further males came to join them after Dhillon and Ingvarsson arrived at the pub. I am satisfied Dhillon and Ingvarsson were at the pub for no longer than five minutes before trouble broke out.

Objective Criminality
28. From the facts as he finds them to be a sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offences with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact in the overall sentencing outcome.

29. In assessing objective criminality of these particular offences a useful starting point is to have regard to the principal objectives of the Firearms Act (1996). They are to be found in section 3 of the Act as being:- to confirm firearm possession and use as being a privilege conditional upon the overriding need to ensure public safety; secondly to improve public safety by imposing strict control upon the possession and use of firearms.

30. So far as the unauthorised possession of these firearms is concerned, the theory behind the Act is that the potential harm to the community that can arise from firearms being made available unlawfully to an unregistered possessor or purchaser is so obvious that it needs no stating. This is an act of immense social irresponsibility. The firearm laws are enacted by Parliament to guarantee public safety through the close monitoring of weapons and who owns or has access to them, and through ensuring that only fit and proper persons have access to these lethal items, a proposition to which I will need to return later.

31. Section 51 and 51A of the Act seek to prohibit the disposal or distribution of firearms to persons who are untraceable as a means of ensuring the distribution of firearms only to persons who are known, respectable and prepared to comply with requirements of strict control upon the possession and use of firearms. For that reason the possession of a firearm without a serial number and therefore without a history is an aggravation of that offence. The distribution of firearms into the community without any means of monitoring or controlling their sale would see weapons in the hands of persons ill-suited for them and persons prepared to use them for illegal purposes. Parliament, police and the public have long associated the unlawful disposal or possession of firearms with the subsequent illegal use of those firearms by the criminal element. Consequently breaches of the Firearms Act are to be regarded and recognised as offences against public safety. If ever a demonstration of that proposition is needed the discharging of the firearm s (by these offenders) is a good example.

32. The offences of firing a firearm in a public place and possession of an unregistered firearm are distinct offences. By providing a more severe penalty for the latter offence that is the possession of the unregistered firearm the Parliament indicates it regards that offence as potentially the more dangerous (to public safety). The possession of an unregistered firearm is of itself serious because of the potential for misuse. Actual misuse brings significant additional criminality, using a pistol unlawfully is a significant additional offence, a danger to the public safety is the more likely to be realised, see R v Rushby (1977) NSWLR 597.

33. The weapons I am dealing with are pistols capable of being fired with one hand and therefore capable of being used in a greater range of situations such as running after a number of other people. It is more difficult, for instance, to discharge a rifle where one has to bring it up to the shoulder to aim it and run at the same time than it is to discharge a pistol chasing a number of other thugs. Each is a large calibre weapon. Impact caused by a projectile from either is likely to cause far more damage to the person or to the property than impact with a smaller calibre weapon. Each is capable of rapid fire. On the most conservative view, six bullets were discharged. The use of the automatic weapon, the multiple discharge and the use of large calibre weapons are all to be regarded as aggravating features. The fact that the offenders were in company of each other discharging their pistols simultaneously or near simultaneously is a further aggravating feature. Although it may appear one fired more shots than the other both will share equal culpability for the total discharge of the rounds.

34. The arrival of members of both groups and the presence of the weapons which had been brought to the scene are factors in my determining that the defence has not proved that this was an impulsive, opportunistic or in the heat of the moment offence. Likewise, it is fair to say that the Crown has not proved it was a planned or premeditated offence. Frankly I am unable to decide one way or the other.

35. This is a case in which damage to property was occasioned, to the motor vehicle, a shop sign, the wall of a building and the bark of a tree. That is to say four objects were hit. In addition to the damage there was always the potential of damage via ricochet. The danger to the public was palpable given the presence of the number of persons in the area and the flight path of some of the projectiles. The actual damage to property and the palpable level of danger to the public constitutes seriously aggravating features of firing the pistol in a public place. An analysis of s 93G of the Crimes Act under which the particular offence is laid reveals that section creates several offences. While all are said to carry the same maximum penalty all things being equal the most serious of the offences created by that section is the discharge of a firearm in or near a public place, that is to say in a sense the offence I am dealing with.

36. Some cultures have different attitudes to the possession of firearms and their discharge in public. In New South Wales however Parliament has made it clear that the possession of weapons and their discharge in public must give way to demands of public safety, there is no right in this country to bear arms. The demands of public safety include not only the safety of the person but also of his property. The criminal law has long been harnessed to protect the safety of the person and his property. I am satisfied each offender’s possession of the relevant automatic pistol in Ross Street constitutes criminality falling within a mid range of seriousness of an offence created by s 7 of the Firearms Act . While the reasons can be gleaned from what I have thus far written in brief they are these:
* The weapons were pistols capable of being held in one hand and discharged in situations such as running or chasing;
* The weapons were automatic and self loading capable of rapid fire;
* The weapons were being used for an aggressive and intimidating purpose at the time of the possession I am focussing on;
* The possession of the weapons constituted actual danger to property and palpable danger to the public;
* The weapons were possessed in company;
* The weapons were used unlawfully whilst in possession of each offender;
* The weapons were used to discharge at least six rounds all up.

37. Of real concern in the case against Ingvarsson were his acts in the motor vehicle when trying to escape. He is reported as saying “Kill the cunt”, referring to the police officer who was putting his life on the line standing in front of the motor vehicle. I am satisfied beyond reasonable doubt Ingvarsson was prepared to occasion grievous bodily harm to that officer if, in so doing, he could escape arrest. The relevance of all this to a firearms charge is that at the time he entertained that intention he was in possession of a rapid firing .45 calibre pistol. Entertaining that intent whilst so armed constituted a very palpable danger to the particular officer concerned. Fortunately the intent was short-lived, spent and did not go beyond seeking to use the car engine for the purpose.

Subjective Features
38. I turn now to the subjective factors of each offender, I am both entitled and required to do that. Not only am I sentencing for the criminal offence but I am sentencing each offender for it or for them. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation and insight into the commission of an offence by an offender or some reason why a more or a less sentencing outcome is appropriate. I start with Khushwant Dhillon.

Khushwant Singh Dhillon

Background, Family and Relationships
39. Dhillon was born in March 1973, he is now thirty five years old and thirty four at the time of offending. He was born in India, migrated to Australia in 1985 with his older brother. By this time his parents had divorced. His mother, with whom he had lived for most of his life thus far, surrendered her custody of him so he could come to Australia to advance his life. His father was in the Air Force, the two boys had little contact with him. Dhillon says he formed a close bond with his brother who he says was older, wiser, helped him during school years and otherwise played a big part in his life. His partner, however, reports that his own brother would say “We are not close”. if that were so, as I have read Dhillon’s letter to me, it may be a significant disappoint for Dhillon. He has been in a relationship with Jodie Barnes-Buckley for five years. She recently gave birth to a son. She says that birth has made a significant impact on her partner. He sees the relationship with her as positive and his partner as supportive. His father untimely died in 1996 in an event which was traumatic for Dhillon.

Education, Skills and Employment
40. Dhillon completed the Higher School Certificate aged eighteen at St Mary’s Senior High School. He sought to follow his father into the Air Force but was rejected on account of a juvenile record. He started a trade in automotive industry as a motor mechanic. He worked for Sinclair Motors, was out of the workforce for a couple of years, then obtained work in 1998 with L J King Steel Fixers. That firm went broke. Nonetheless he found employment as a concreter. He has also worked as a bricklayer and a roof tiler. He has maintained his interest in motor vehicles and one of his referees speaks of him doing up cars.

41. Around 1999 he pursued an interest in Muay Thai Kickboxing. This sport became his passion, he trained in gyms in Thailand. He became senior enough to begin teaching and ultimately teaching full time. In the course of teaching one of his students was the co­offender Ingvarsson. Dhillon is now the proprietor and manager of a fitness training gym in Penrith.

General Health
42. Dhillon presents as a powerful, physically fit thirty five year old. There is nothing in the evidence before me to suggest any physical ailments that would have contributed to this offence or that would impede upon his rehabilitation prospects when he returns to the community. In saying that I am conscious that he was the victim of a serious assault said to be a couple of months before this offence which rendered him unconscious.

Mental Health
43. Dhillon was assessed for the defence by Tim Watson-Munro, a consultant forensic psychiatrist. Watson-Munro opines that as a consequence of the assault I have just referred to there was a significant hyper­vigilance. He also noted longstanding feelings of unresolved grief and presenting as a somewhat anxious and depressed man. None of those symptoms appear to be recognised by any of his referees. None of those symptoms are at a level where they will interfere with his rehabilitation prospects. The hyper­vigilance while I accept may have existed was not of a sufficient order to be a disorder. It may have played some part in his sensitivity to being threatened but anyone facing eight men would naturally have felt threatened. It may have played some part in his possessing the pistol but there the mitigatory effect must end because the pistols, as I say, were used for the purposes of intimidating and aggressively threatening the would-be attackers.

Character and Criminal History
44. Dhillon has a number of persons in the community who have communicated to the Court their support for him. Most of his referees are involved in his sport. One student noted that although unable to pay Dhillon took an interest in training him. Others as referees seemed to support that proposition. Our community admires its sportsmen, particularly those at the peak end of their sport. In this case Dhillon is making a useful contribution to the community through his sport. The obverse side of the coin though is the sportsmen at the peak end present as role models to their community, Dhillon is no exception. As I said, most of his referees find themselves trying to justify their high regard for him in circumstances where he has behaved in a serious criminal way. It seems to me it would be fair to say he has let them down. He is described as loyal, supportive, strict but fair, reliable, trustworthy, having high standards of work ethic, having leadership qualities and so on.

45. Dhillon has a good work ethic, he possesses skills in the automotive field and kickboxing, he has work experience in the building industry, all of those are positives in his character. On the other hand his criminal antecedents do him no credit. Thus far all of his offending has been dealt with at least initially before the Magistrates Court. His offending conduct includes malicious damage on three occasions and break and enter, all dealt with in the Children’s Court; stealing; driving offences; steal from the person; possessing implements; assault and hinder police; break enter and steal; steal motor vehicle, dealt with in the adult court. Of some significance in this case is a 1991 conviction for possessing a firearm when unlicensed. As best I can tell he has served sentences as an adult in custody in 1992, 1995 and 1997. I should note that his conviction for possessing a firearm when unlicensed earlier throws into some relief and perhaps some doubt his claimed need for the pistol in 2006 for self defence. Between February 1999 and May 2003 there was a period of non-offending. For a drive whilst disqualified that occurred in May 2003 he was given a s  10 discharge expiring in September 2006. Thus putting the drive whilst disqualified given to him to one side for the moment his last conviction for an offence committed was in February 1999, his longest period of non-offending as an adult.

Plea Status
46. This offender pleaded at the earliest opportunity and is entitled to a full twenty five percent discount allowed for the utilitarian value of the plea. The discount is allowed because of the value of the plea to the administration of criminal justice in terms of saving time of the court and time of lawyers and the resources of the community in supporting the criminal justice system.

Attitude to Offence
47. Dhillon writes that he is deeply sorry and regretful for his actions. He concedes he was placing others in danger. He says this was an isolated incident and will never happen again. Regrettably, all of that is contained in the same document where Dhillon was putting that he was over the limit to drive so rang his co-offender to come and pick him up, a proposition I have rejected on two bases. Firstly, that his co-offender arrived with him and secondly, on account that I have accepted that he was not at the pub for a substantial length of time before the shooting started, a proposition I note Ingvarsson’s account to Tim Watson-Munro would also support.

48. I am satisfied he is finding gaol the more difficult because of the birth of his newborn son, that he accepts his conduct is wrong and acknowledges that it was criminal conduct that placed him in custody. In this sense he has insight. There is one further subjective matter perhaps in respect of Mr Dhillon. His partner writes,

“Khushwant paid all the bills and looked after all the finances. He is my only support and not only financially but emotionally. He supported me in January 2007 after we suffered a miscarriage. I fell into a state of depression with suicidal thoughts. He has supported me throughout my life. I find it real hard to do day to day chores including the shopping and paying the bills with a newborn baby who is so demanding and with little support of anyone. I have noticed my son is getting older and this demand is increasing. I need Khushwant to help me raise my son and take some of the pressure off being a single parent and that is what I see as it causes no body else to help me. I need Khushwant with me more than what he is needed in gaol."

49. Quite frequently family claim that their needs should impact upon the outcome of a sentencing disposition. There is clear law in respect of this and in the circumstances of this case the law that would apply to that situation cannot come into force. It is only when it would be an affront to common sense and the community that the impact of a sentence upon a third person can play a part. The law is very conscious of the fact that prisoners leave grieving, desperate families behind them. It doesn’t make sentencing any easier and no doubt it doesn’t making serving them any easier. But at the end of the day the law must be applied equally among all offenders.

Ingi Runar Ingvarsson

50. I turn now to Ingi Runar Ingvarsson. Ingvarsson was born in November of 1981. He is now twenty-seven years old. He was aged twenty-six at the time of offending. He was born in Reykjavik, Iceland, migrating to Australia in 1987 at the age of six. Initially the parents and three children came. Regrettably, the father could not adapt, drank excessively and returned to Iceland within twelve months. He was followed by the older brother some four or five years later who also returned to Iceland.

51. Some years after the older brother’s return the father and elder brother appear to be re-united. Ingvarsson has been to Iceland more than a dozen times to visit his father and no doubt his brother. It would appear during Ingvarsson’s adolescence the mother was left as a single parent. He is close to his mother and sister and intends to reside with them upon his release.

52. There has been a significant relationship of five years with a woman but that ended towards the end of 2006. I apologise for describing her as "a woman" because she wrote a reference for him which was very helpful and insightful.

Education, Employment and Skills

53. He completed primary and secondary education at St Clairs. He completed his HSC in 1999. He worked during the HSC for Active Detailing Pty Limited. I have assumed that is work related to detailing motor vehicles most likely in the used car market sector but I cannot be sure. The manager of that business has apparently maintained contact and I understand that Ingvarsson has worked with him since high school. The manager has supplied a reference.

54. Ingvarsson’s sister writes that she and her brother decided in November of 2006 to pursue as partners a business in graphic designing. She was to accept responsibility for designing, printing and production while Ingvarsson handled sales and marketing. To advance himself he enrolled in a TAFE marketing course completing three months of the twelve month course. Initially the business went well. However, Ingvarsson’s incarceration has had a major disruptive effect on the business. I gather its future is less than certain in the immediate. However the sister contemplates putting matters on hold until it can be incorporated into Ingvarsson’s post-release plans.

55. He has also completed two of a four years telecommunications engineering diploma at TAFE. His post-release plans include completing both of these courses.

General Health

56. Ingvarsson has been subject to two serious attacks. The first, a ferocious, brutal, life threatening attack, saw him hospitalised for a substantial period and off work for two months. The attack was outside his home. He was outnumbered. His attackers were said to be members of a motor cycle club. Knives and an axe were used as weapons. His leg required thirty sutures from an axe wound. His lung was punctured by a stab wound. There were four or five other stab wounds. He had to be put on life support initially. His physical recovery as I say was slow.

57. The second attack while not as serious as the first still left psychological scarring to which I shall next come. In this attack he and his co-offender Dhillon were knocked unconscious.

Mental Health

58. Tim Watson-Munro who also assessed this offender diagnosed symptoms consistent with post traumatic stress disorder arising from the brutal assault in October of 2006. Among the symptoms was elevated depression with a sense of despair, high levels of anticipatory anxiety, ongoing hyper vigilance, nightmares, flashbacks and diminished self esteem.

59. Ingvarsson’s mother and then girlfriend noticed during the post first attack recovery period and beyond he was withdrawn, anxious, paranoid, edgy and reluctant to do things he had previously done as routine. Ingvarsson says after the second attack he then withdrew into his shell again. Worryingly, indeed very worryingly in the circumstances, he questioned himself asking, “Am I going to have to get rid of these people?” I accept that he was extremely paranoid and did carry a weapon he says to scare off any would be attackers.

60. I am satisfied his hyper vigilance and paranoid attitude played a causative role in his possession of and choice of a weapon. It was a much more serious disorder than Dhillon’s. But as with all these things, such a finding has a two-way impact on the sentence.

61. That he chose to come by a weapon while unauthorised by licence so to do exposed the community to having a person in possession of a weapon who was clearly mentally unfit to possess a 45 calibre self-loading automatic pistol, securing it illicitly and stealthily possessing it so that the danger to the community could not be monitored.

62. On the other hand the driving forces behind his possession included significant input from his mental health condition. It should not be thought I regard his possession of the firearm as only caused by the mental health drivers. I have only labelled it significant. There were also other factors at play. His possession of the firearm may have offered him a sense of security, but his decision to use it was one made in company with his co-offender. The use of it was not driven by paranoia but by an aggressive and deliberate desire to intimidate others at the point of a barrel.

Alcohol and Drugs

63. Ingvarsson started drinking at the age of seventeen. There was a period of binge drinking but that never interfered with his capacity to work. However, he claims intoxication at the time of the offence to Probation and Parole although he subsequently modified that when it was pointed out that he had claimed in an interview he had only drunk six small bottles of beer.

64. He concedes he has experimented with cannabis, amphetamine, ecstasy and cocaine but not in large quantities, although elsewhere he says that between sixteen and nineteen his amphetamine use was costing $300 weekly. His position on that now is that that was a lie to con the Court. Not a comfortable thing to be saying to another court. On the information before the Court his drug consumption plays no part in his offending behaviour.

Character and Criminal History

65. Prior to this offending conduct Ingvarsson had been able to demonstrate a work ethic and a study ethic, a reasonable attendance and performance at school, had presented as a good family man notwithstanding the circumstances in which he had been raised, loyal to his father and brother as well as to his mother and sister. He had shared good times with a girlfriend, a relationship that I sense was adversely impacted by the terms of the major assault upon him.

66. He commenced his criminal history in 2000 with a drive with mid range alcohol. He was before the District Court in 2001 for an aggravated robbery with wounding which it seems was taken into account in respect of a supply of prohibited drug. In respect of that supply he did two years incarceration. There are offences for hindering police and behaving in offensive manner and other drink driving offences. What can be said about his record is that he has had one serious offence on it. I thought there had been an offence of a similar kind but I may be wrong. He told Probation and Parole that his involvement in the offence was because he feared for his life and so fired a number of shots in the air to frighten them off. It was said that he appeared to lack comprehension of the antisocial nature of his actions and indeed the extreme level of his actions.

67. He pleaded at the outset before the Magistrates and is entitled to a twenty five per cent discount.

Other matters

68. That is the end of the review of both subjective matters.

69. Both men have been in custody since the day of the offence which was 12 April 2007. Any sentence will be backdated to that date.

Standard Non-parole Period

70. There is nothing in the subjective facts that takes this matter outside of a midrange of seriousness. On its objective facts it must be one that is regarded as falling into a midrange of seriousness. However the standard non­parole period does not apply in cases where a plea of guilty has been entered. I certainly do not intend to apply it in this case.

Parity

71. I have regarded both men’s possession of the weapons and the bringing of them from their home or wherever they kept them as being equal. I regard the objective criminality in respect of both on the possession charge and the circumstances of their possession, that is, the use of the weapons in ways that I have dealt with in detail, as equal. The only thing that it seems to me could have possibly distinguished them but did not was the difference in the apparent discharge of bullets. Otherwise, there is nothing to distinguish them. Dhillon is the older and the leader, but the co-offender was always a willing and enthusiastic cohort. So for that reason I intend to treat each equally.

72. Overall the sentence for possession the maximum penalty is one of fourteen years. I would have given five years taking into account the Form 1 matters in respect of both offenders. That is subject to a twenty-five percent discount and that brings that figure down to four years.

73. The maximum penalty for firing a weapon is ten years. But for the plea of guilty in respect of the second charge I would have set a sentence of four years. That is reduced to an overall sentence of three years applying the twenty-five percent.

74. I am finding special circumstances in the case of both of you. The facts that cause me to find the special circumstances relate particularly to the provocation that occurred at the pub, that is, that in circumstances where you had been assaulted previously by gangs and in circumstances where I do accept Sengos to this extent that Ross Street pub was your pub, the Royal Oak was your pub, these people came to it, it is appropriate that I find special circumstances to mitigate the offence in the light of provocation.

Sentencing

75. Would you stand up please, gentlemen. Ingi Ingvarsson and Khushwant Dhillon, each of you is convicted of the offence that you between 9.01 and 9.02 on 12 April 2007 at Parramatta possessed a prohibited weapon to wit in one case a 45 calibre Colt and in the other a 9 millimetre Norinco self loading pistol not being authorised by licence or permit so to do. For that offence each of you is sentenced to a term of imprisonment of two years to date from the date of your arrest which I am hoping is 12 April 2007 and to expire on 11 April 2009.

76. I set a balance of term of two years to expire on 11 April 2011. I should indicate in respect of that offence that your release will be determined by the Parole Board and not by any order this Court can make. You will need to persuade the Parole Board that you are suitable candidates for release on parole at that time.

77. In respect of the other offence, that is, that you did discharge a firearm with disregard for the safety of other people at Ross Street, Parramatta I set a minimum term of two years to date from 12 October 2007, an accumulation of six months, and expiring on 11 October 2009. I set a balance of term of one year expiring on 11 October 2010.

78. In this case I do order your release to parole on 11 October 2009. That order may be overridden by the Parole Board, but all up what I have set for you is a two and a half year non-parole period.

WATSON: Your Honour I’ll just raise one matter, your Honour mentioned that the vehicle was being driven by Mr Dhillon-- WATSON: Your Honour I’ll just raise one matter, your Honour mentioned that the vehicle was being driven by Mr Dhillon--

HIS HONOUR: Did I say Dhillon, I meant Murphy.

WATSON: Yes.

HIS HONOUR: Thank you Mr Watson.