R v K

[2003] NSWCCA 401

CITATION:	Regina v Baquayee [2003] NSWCCA 401
HEARING DATE(S):	12/12/03
JUDGMENT DATE:	19 December 2003
JUDGMENT OF:	Sully J at 1; Barr J at 2; Newman AJ at 3
DECISION:	1. Appeal upheld; 2. Sentences imposed by His Honour Judge Coorey on the 17th of March 2003 quashed; 3. In relation to Count 2 of the indictment, namely the crime of malicious wounding with intent to do grievous bodily harm involving Ahmed Marnosh Zikria, in lieu substitute a head sentence of 8 years commencing on the 5th of June 2002 and expiring on the 4th of June 2010 with a non-parole period of 4 years and 9 months commencing on the 5th of June 2002 and expiring on the 4th of March 2007; 4. In the case of the crime of malicious wounding with intent to do grievous bodily harm involving Mustafa Zikria, in lieu substitute a head sentence of 10 years commencing on the 5th of June 2002 and expiring on the 4th of June 2012 with a non-parole period of 6 years commencing on the 5th of June 2002 and expiring on the 4th of June 2008.
CATCHWORDS:	Criminal Law - Crown Appeal - maliciously wound with intent to do grievous bodily harm - manifestly inadequate sentence - totality - double jeopardy.
LEGISLATION CITED:	Criminal Appeal Act 1912 (NSW) Crimes Act 1900 Crimes (Sentencing Procedure) Act
CASES CITED:	Pearce (1998) 194 CLR 610 R v Loh 127 A Crim R 577 House (1936) 55 CLR 409 Dinsdale (2000) 202 CLR 321 Wong (2001) 76 ALJR 79
PARTIES :	Regina Mohammed Tamin Baquayee
FILE NUMBER(S):	CCA 60155/2003
COUNSEL:	Crown: P. Miller Baquayee: H. Dhanji
SOLICITORS:	Crown: A. Bhat Baquayee: J. Witmer

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/21/1200
LOWER COURT JUDICIAL OFFICER :	Coorey J

60155/2003

SULLY J
BARR J
NEWMAN AJ

19 DECEMBER 2003

Regina v Mohammed Tamin Baquayee

Judgment

1 SULLY J: I agree with Newman AJ.

2 BARR J: I agree with Newman AJ.

3 NEWMAN AJ: This is an appeal brought by the Director of Public Prosecutions pursuant to section 5(d) of the Criminal Appeal Act 1912 (NSW) against sentences imposed upon the respondent by His Honour Coorey DCJ in the Districts Courts at Campbelltown on the 17th of March 2003.

4 The respondent had been indicted on 2 charges of wound with intent to murder pursuant to section 27 of the Crimes Act 1900 and 2 alternative charges of maliciously wound with intent to do grievous bodily harm brought pursuant to section 33 of the Crimes Act 1900. The respondent having pleaded not-guilty to all counts on the indictment, a trial proceeded. In the event the jury found the respondent not-guilty of the 2 counts of wound with intent to murder but guilty of the two alternative counts of maliciously wound with intent to do grievous bodily harm.

5 At the trial the respondent not only denied that he had committed the acts which were relied upon by the Crown in support of the indictment but also raised self-defence as an issue. Both of these matters were plainly enough rejected by the jury in finding as they did.

6 The maximum sentence stipulated by section 33 of the Crimes Act for the crime of maliciously wound with intent to do grievous bodily harm is 25 years’ imprisonment. On both counts His Honour imposed sentences consisting of a head sentence of 6 years with a non-parole period of 2 years and 9 months. His Honour ordered that the sentences be served concurrently.

7 Before this Court the Crown contended that the sentences imposed by His Honour when considered individually were manifestly inadequate and when looked at from the standpoint of totality of sentence even more so.

8 I turn then to the objective facts as found by His Honour.

9 On the 22nd of April 2002 the respondent and his brother were present at the Hoyts Cinema Complex at Mount Druitt. Amongst others present at the complex at the time were two other brothers: Ahmed Marnosh Zikria and Mustafa Zikria. At a time when patrons were leaving the cinema a dispute broke out between, inter alia, the Zikria brothers and the respondent. His Honour found, and there was ample evidence to support his finding, that the Zikria brothers particularly Ahmed Marnosh Zikria were the aggressors in the dispute. The respondent produced a handgun and shot both of the Zikria brothers. Ahmed Marnosh Zikria suffered a bullet wound to his right thigh and had bullet fragments lodged in his right leg with small fractures of the upper femur. His brother Mustafa suffered much more serious injuries as a result of being shot by the respondent. His initial gunshot wound was to his epigastric area. When a surgical procedure was carried out upon him at the Nepean Hospital it was found that the bullet had caused a wound to the right lobe of the liver and a wound to the right lower lobe of the right lung. Mustafa Zikria had a stormy recovery which included complications such as a pulmonary embolus, epilepsy and pneumonia. He was hospitalised for 1 month and 6 days and during 2 of the weeks he was in hospital he was in a coma. Plainly enough the wounds suffered by Mustafa Zikria were very life threatening.

10 In his remarks on sentence His Honour observed as follows:

“I accept the Crown’s submission. I accept Mr Amer’s submission to the extent that the uncontrollable outbursts in Court are clearly consistent with the description of Marnesh on the night of the offence. Mr Amer reiterates that the delay caused by the Crown’s application, although through no fault of the Crown and properly motivated, nevertheless that delay has caused anxiety to the prisoner’s family. The Crown reminded me that the witnesses to the incident gave various descriptions of the assault, beg your pardon of the forcing of the prisoner and his brother down the ramp, the Crown took me through those again this morning. The Crown conceded that there were special circumstances in this matter which would warrant my altering the formula in the Crimes (Sentencing Procedure) Act that is the sentencing formula. The Crown reminded me that this is the first time the prisoner has been in gaol and of course the evidence clearly shows that he is making good rehabilitative progress and it seems to me the evidence also shows the prisoner needs a lengthy period of supervision when he is released from gaol. I have reflected upon this matter for some time because of the unusual circumstances of the commission of this crime. It seems to me that basically the sentence would have to be slightly above the mid range but I repeat only very slightly above the mid range because of the unusual way in which this crime occurred, namely the vicious and violent attack by the victims upon the prisoner and his young brother. Were it not for those particular facts the sentence formula would be much greater because of the use of a gun. I think that if I was to impose precisely the mid range that I would be in error and that would be unfair to the prisoner because that would expose him to the risk of a Crown appeal. It seems to me the preferable course is to impose a sentence which is slightly above the mid range, it seems to me that I should make a substantial alteration of the sentence, that is the proportion between the non parole and the full term. I accept Mr Amer’s submission that the unusual circumstances of this case do require that I make some adjustment to the sentence.”

11 His Honour’s reference to the range of sentences was based upon statistics from the Judicial Commission for the crime of malicious wounding with intent to do grievous bodily harm which had been tendered by the Crown.

12 Putting aside any considerations of totality, in my view His Honour fell into error in sentencing the respondent on each of the separate sentences he passed. In both cases, putting subjective considerations to one side, the appropriate sentences should have been at the high end of the range of sentences applicable in this case. I say this for two reasons. First, both crimes involved the use of a handgun. This is not only an aggravating feature identified by the Crimes (Sentencing Procedure) Act but also at common law. In my view it is difficult to think of a more serious aggravating feature when dealing with an appropriate sentence for this crime than the use of a handgun. Because the respondent did not give evidence at the trial neither His Honour nor this Court could or can ascribe any reason to the respondent’s actions in bringing a handgun with him to the cinema on the subject night. Second, the wounds suffered by the Zikria brothers, in particular those suffered by Mustafa Zikria, were very serious. Indeed, in the case of Mustafa Zikria the combination of the aggravating feature of the use of a handgun and the severity of the wounds he suffered in my view place the crime committed upon him in the category of the worst type of case. In other words in considering sentence for the wounding of Mustafa Zikria His Honour should have considered imposing the maximum sentence.

13 His Honour dealt with the subjective considerations related to the respondent in detail. As no challenge has been mounted to His Honour’s treatment of the subjective considerations I repeat them in full:

“I turn to subjective considerations. The prisoner is a thirty two year old man who lived with his parents before his incarceration on 5 June 2002. He has legal custody of his eight year old son, the prisoner’s probation and parole officer said that the prisoner and his parents make a positive or rather give the child a positive upbringing. The prisoner does not know the whereabouts of his former wife. The prisoner and his parents migrated to Australia in 1987 when the prisoner was sixteen years of age. The prisoner has been in constant employment since completing the Higher School Certificate in 1988. He worked as a financial consultant from January 2002. He had hopes of becoming a security officer and was pursuing a course in private investigation and security at the time of the commission of the offences. There has been considerable argument on the question of the prisoner’s contrition. Under the heading “attitude to the offence” the author of the pre-sentence report states as follows. He says “the offender agrees with the police facts and he seems to acknowledge the seriousness of the offending behaviour, although he admits the offences occurred, he does not appear to have accepted responsibility for his offending behaviour and does not seem to be aware of the full impact of his actions on the victims. In interviews the offender continually minimised his offences by directing onus on the victims and the threat to himself and his brother. The author is of the view that the prisoner would benefit from anger management programs and or coping in society programs. A report from the area management at Parklea Correctional Centre dates 15 August 2002 stated that “the prisoner has completed a number of courses, including a course in anger management”. I have the benefit of a psychological report from the Parklea Correctional Centre, although the opinion is qualified to some extent, the authors of that report express the opinion that there is a low risk of the prisoner re-offending. The authors recommend the prisoner continues with individual and group counselling to develop the ability to solve his problem.

Their concern is that the prisoner has not displayed an alternative approach to the reaction that he took at the time of the offence. The authors consider that further development of the prisoner’s skills in coping is necessary. I also have the benefit of a report from Carleen(?) Ryder, a psychologist. I note also that the author refers to the fact that the prisoner has a minimal criminal record. The author notes that the “prisoner does not appear to be a dependent drug user and his work history is relatively steady. It would appear that he does not have the obvious risk factors for ongoing criminal behaviour. His behaviour in custody thus far is commendable and he has undertaken employment, study and anger management course. If he undertakes assertiveness training and careers counselling his chances of successfully reintegrating into the community will be improved”.

The prisoner comes from a supportive family. The prisoner’s brother who is a member of the New South Wales police force impressed me in court as a responsible person. The prisoner's brother behaved properly in taking the prisoner and his younger brother to Mount Druitt police station to surrender to police. The prisoner’s father gave evidence on 8 August 2002. The prisoner’s father also impressed me as a supportive person, he is obviously a good father and has been a good father to his four children. He said that he taught his four children to work hard and to study hard. The prisoner’s father has been in Court throughout each day of the proceedings, indeed throughout each day of the trial and throughout each day of the sentence hearing. There is no doubt that the prisoner’s father has been upset by what has happened. Indeed despite the uncontrollable outbursts of the first victim in the trial, the prisoner’s father behaved with dignity and showed no reaction. He struck me as a worthwhile human being. Obviously this has upset him considerably. There is no doubt that the prisoner’s father is well respected in his community. The prisoner’s father told me that the prisoner’s wife left the prisoner and their eight year old son. The prisoner and his son moved into live with his father.”

14 The respondent had one entry on his criminal record. That being for common assault. Apparently the events which led to that conviction were as a result of his failed marriage. In my view His Honour rightly did not hold that conviction against the respondent.

15 I turn then to the concept of totality. What His Honour should have done was to determine the appropriate sentence for each offence on the indictment and then arrive at an appropriate sentence to reflect the totality of the criminality by making the individual sentences either concurrent or cumulative: see Pearce (1998) 194 CLR 610. In the instant case the Crown Prosecutor conceded that it was appropriate for His Honour to pass concurrent sentences. He did not advert to the principles laid down by the High Court in Pearce. However he did remind His Honour of the concept of totality. He should have alerted His Honour to the fact that his sentence should reflect the objective criminality of both offences. Here the sentences passed do not reflect the serious nature of the crimes committed, involving as they do as they do the shooting of two people.

16 As I have already stated, I am of the view that His Honour’s sentences for both crimes were manifestly inadequate. However, of course, the matter does not end there. As Wood J put it in R v Loh 127 A Crim R 577 at 582:

“It is well established the this Court should not interfere with a sentence on a Crown appeal merely because it is of a view that it is less than that which the Court would have itself imposed: see House (1936) 55 CLR 409 at 504; and see also Dinsdale (2000) 202 CLR 321; 115 A Crim R 558.

An appellate Court may only interfere if it is shown that the sentencing Judge fell into a material error of law or fact, a test which may be met where the sentence is so far outside a legitimate range of sentencing discretion that error must be assumed, even though it is not otherwise apparent on the face of the reasons for sentence: see Wong (2001) 76 ALJR 79 at 90 per Gaudron, Gummow and Hayne JJ.”

17 It was also put on behalf of the respondent that in view of the concession made by learned Crown Prosecutor that His Honour was entitled to pass concurrent sentences and the fact that he did not remind His Honour precisely of the principles established by the High Court in Pearce, that this Court should exercise its discretion and not interfere. However, as I have already stated, His Honour was alerted to the concept of totality by the learned Crown Prosecutor, and his failure to consider that concept cannot be visited upon the Crown. Accordingly, I would not exercise the Court’s discretion to disallow the appeal on that basis.

18 It is also well established that should this Court decide that a sentencing Judge has fallen into an appellable error in an appeal brought pursuant to section 5(d), the Court, applying the principle of double jeopardy will impose a lesser sentence than would have been justified.

19 Another matter of challenge to His Honour’s sentence is the fixing of the non-parole period. In both cases His Honour fixed a non-parole period which was 46 per cent of the head sentence. In his remarks on sentence, which I have set out above, it seems that His Honour, in fixing the non-parole period relied not only on special circumstances, (as had been conceded by the Crown to exist in this case), but also upon the actual circumstances of the commission of the offence. As His Honour had already done so when dealing with the head sentence, to repeat the exercise when dealing with a non-parole period seems to me to be a matter of error. I should add that His Honour did not fall into error in finding special circumstances: for instance, a special circumstance here is the fact that this was the first time that the respondent was to serve a term of imprisonment. A non-parole period equivalent to some 60 per cent of the head sentence would have been adequate in the circumstances. In the circumstances, if the sentences were to be concurrent, the head sentence I shall suggest in the case involving Mustafa Zikria would satisfy the concept of totality. The minimum sentences which should have been imposed by His Honour were head sentences of 10 years in relation to the crime involving Ahmed Marnosh Zikria; and 12 years in the crime involving Mustafa Zikria. Taking into account the concept of double jeopardy to which I have already referred, this Court should interfere, and quash the sentences passed by His Honour; imposing in lieu, in the case of Ahmed Marnosh Zikria a head sentence of 8 years, and in the case of the crime involving Mustafa Zikria a head sentence of 10 years. Applying special circumstances and utilising a factor of 60 per cent this would result in a non-parole period in the case of Ahmed Marnosh Zikria of 4 years 9 months and in the case of Mustafa Zikria a non-parole period of 6 years.

20 The orders I would propose are as follows:

21 1. Appeal upheld;

22 2. Sentences imposed by His Honour Judge Coorey on the 17th of March 2003 quashed;

23 3. In relation to Count 2 of the indictment, namely the crime of malicious wounding with intent to do grievous bodily harm involving Ahmed Marnosh Zikria, in lieu substitute a head sentence of 8 years commencing on the 5th of June 2002 and expiring on the 4th of June 2010 with a non-parole period of 4 years and 9 months commencing on the 5th of June 2002 and expiring on the 4th of March 2007;

24 4. In the case of the crime of malicious wounding with intent to do grievous bodily harm involving Mustafa Zikria, in lieu substitute a head sentence of 10 years commencing on the 5th of June 2002 and expiring on the 4th of June 2012 with a non-parole period of 6 years commencing on the 5th of June 2002 and expiring on the 4th of June 2008.

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Last Modified: 12/23/2003