R v John Raymond Black No. SCCRM 93/6 Judgment No. 3935 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 3935

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MOHR(1) BOLLEN(2) AND MILLHOUSE(2) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure judgment and punishment - Sentence - shooting with intent to do grievous bodily harm - convicted on only one of three counts - head sentence 5 years and 8 months - appeal against severity of sentence - appellant extensive history of violence and firearm of fence - appeal dismissed. Zecevic v DPP 162 CLR 645, considered.

HRNG ADELAIDE, 20 April 1993 #DATE 19:5:1993
Counsel for appellant:     Mr D H Peek
Solicitors for appellant:    Mr William F Braithwaite
Counsel for respondent:     Mr P R Brebner
Solicitors for respondent: Director of Public
   Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 MOHR J. The appellant was convicted of shooting with intent to do grievous bodily harm. He was sentenced to five years and eight months imprisonment. On his own request no non parole period was fixed. He now appeals against the severity of the sentence. 2. The conviction arose out of a series of incidents involving firearms on 20th April 1991 at Goondooloo on a property situated generally near the town of Murray Bridge. 3. On that occasion four people suffered injury from gunshots. The appellant himself suffered injury from the discharge of a shot gun. In the same series of incidents the appellant wounded three other men who were at the property by shooting at them with a .22 calibre rifle. He was charged with shooting each of them with intent to inflict grievous bodily harm. At the end of trial the appellant was acquitted by the jury of the charges relating to two of the men namely Gilchrist and Williams but convicted on the charge relating to Van Roosmalen on whose property it was that the incidents occurred. The appellant appealed seeking to have his conviction set aside. His appeal was dismissed but the reasons of the Chief Justice with whom Legoe and Olsson JJ agreed loomed large in the submission of Mr Peek who appeared for the appellant as also did the sentencing remarks of Mullighan J. 4. The appeal was argued on the basis of the appellant's version of events. This was done with the concurrence of counsel for the prosecution. In short, this involved the proposition that the first shot was fired by Gilchrist and this resulted in the injuries suffered by the appellant to his left hand and right leg. Thereafter according to the appellant he was in fear of the three men and his subsequent wounding of each of them was done in self defence. This defence in so far as it related to Williams and Gilchrist must have been accepted by the jury as at least a reasonable possibility equally obviously it was rejected by the jury in relation to Van Roosmalen. 5. In his sentencing remarks the learned trial Judge said:-
    "It is of course, my task to establish an appropriate basis for
    sentencing upon all of the evidence which is not inconsistent
    with the verdict of the jury. The evidence clearly established
    that you went to the property with a loaded rifle. You sought
    confrontation with Van Roosmalen and you shot him when he was
    defenceless to your attack. You caused the dangerous situation,
    and I accept, as a basis for sentencing that you were shot by
Williams because of what you had done to the others." 6. Accepting in outline the following sequence of events which came from the appellant's version it seems the appellant was first wounded by Gilchrist. Gilchrist left the room and went outside. The appellant, wounded, went to the kitchen and had a drink. He then loaded his rifle and returned to the room in which Williams and Van Roosmalen were. Near Williams was a shotgun lying on the floor. Williams said something to the appellant which caused him to apprehend danger from someone (Gilchrist presumably) outside the house. The appellant fired several shots through the door and wounded Gilchrist. The appellant ordered Williams to investigate which he did and brought the wounded Gilchrist into the room. He then turned to Van Roosmalen and ordered him to lie on the floor. He did not obey. The appellant fired a "warning" shot. Van Roosmalen still did not obey. The appellant then shot him twice. His explanation was that he wanted to telephone the police and as he could not hold the rifle in his left hand because of his wounds, wanted to ensure that he would be safe if he put the rifle down to use the telephone. 7. The appellant then apprehended that Williams was making a move towards the shotgun. He shot him to prevent that movement. Whatever may be said about the circumstances of the shooting of Gilchrist and Williams it is clear, as I have already said, that the jury rejected the appellant's evidence that the shooting of Van Roosmalen was done in self defence. 8. Mr Peek pointed out that the trial was conducted in accordance with the law relating to self defence as laid down by the High Court of Australia in Zecevic (1987) 162 CLR 645. He went on to point out that following the amendment of the law relating to self defence in the South Australian Criminal Law Consolidation Act, the test to be applied is subjective rather than objective. This is undoubtedly so, but even on that test the circumstances of the shooting of Van Roosmalen could only be seen as inexcusable in my opinion. Van Roosmalen was unarmed. He had made no threat to the appellant nor had he made any threatening moves. He made no move to prevent the appellant from doing whatever he was minded to do. 9. Mr Peek submitted that in his sentencing remarks his Honour made a mistake of fact when he said that the appellant "went to the property with a loaded rifle". This may be so but it must be borne in mind that he had heard the evidence and although the appeal proceeded on the basis of the appellant's version of events that was not necessarily the version which for the purpose of sentencing his Honour had to accept. However, even accepting that he was there in error in my opinion, that does not detract from his findings as to the shooting of Van Roosmalen. 10. What then of the penalty imposed. His Honour adverted to the serious nature of the offence itself and then referred to the appellant's prior history of offending. This included two counts of attempted murder followed on his release by an assault occasioning actual bodily harm and an offence of threatening life, followed shortly before the offence, by the offence of conspiring to commit an armed robbery. The present offence was committed while on bail for the charge of conspiracy. He referred to reports he had before him regarding the appellant's past life and psychiatric and emotional states. He allowed the equivalent of 28 months for the time spent in custody for the present offence. Having considered these matters he remarked that if it had not been for the allowance for time spent in custody he would have imposed a sentence of eight years imprisonment. In the result the sentence was five years and eight months to be served at the expiration of the sentence being served for the conspiracy offence. 11. In my opinion there was ample justification for the sentence imposed. I would dismiss the appeal.

JUDGE2 BOLLEN J I agree.

JUDGE3 MILLHOUSE J I agree.