R v Munoz
[2003] NSWCCA 133
•30 April 2003
CITATION: R v Munoz [2003] NSWCCA 133 revised - 09/05/2003 HEARING DATE(S): 30/4/03 JUDGMENT DATE:
30 April 2003JUDGMENT OF: Wood CJ at CL at 1, 28; Simpson J at 27 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - using an offensive weapon with intent to prevent a member of the Police Service from investigating an act reasonably calling for investigation - discharging a firearm in a manner likely to endanger the safety of others - importation of cocaine into Australia. Appeal dismissed. LEGISLATION CITED: Crimes Act 1900
Customs Act (Cth) 1901CASES CITED: R v Bahsa [2003] NSW CCA 36
R v Bazzi [1999] NSWCCA 346
R v Greene [2001] NSWCCA 258
R v Hamilton (1993) 66 A Crim R 575
Pearce v The Queen (1998) 194 CLR 610
R v Watts [2000] NSWCCA 167PARTIES :
Regina
David Alexander MunozFILE NUMBER(S): CCA 60029/03 COUNSEL: L M B Lamprati (Crown)
A C Haesler (Applicant)SOLICITORS: S E O'Connor
D J Humphreys
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 01/11/0323; 01/11/1248
LOWER COURT
JUDICIAL OFFICER :Holt DCJ
60029/03
Wednesday 30 April 2003WOOD CJ at CL
SIMPSON J
1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence of imprisonment for a fixed term of two years for an offence of using an offensive weapon with intent to prevent a member of the Police Service from investigating an act reasonably calling for investigation. Such offence is one for which the maximum available sentence pursuant to s 33B of the Crimes Act is imprisonment for twelve years.
2 At the same time he was sentence to a cumulative fixed term of two years for an offence under s 93G of the Crimes Act for discharging a firearm in a manner likely to endanger the safety of others; and to two separate terms of six years, each cumulative upon the State offences, but concurrently with each other, for offences of having been knowingly concerned in the importation of cocaine into Australia contrary to s 233B of the Customs Act 1901.
3 The total sentence was accordingly one of ten years with an effective non-parole period of six years and nine months. The non-parole period was expressed to commence at the expiration of the fixed terms for the two State offences.
4 The application for leave to appeal is confined to the s 33B offence, it being submitted that the accumulation of sentences in relation to the two State offences resulted in a sentence that was manifestly excessive. Otherwise it was accepted that the sentences were appropriate.
5 The firearms offences were extremely serious having regard to the circumstances in which they were committed. On 15 July 2001, a resident of the premises in McGirr Parade, Warwick Farm, was seriously assaulted by a group of men. The applicant, who lived in premises in the same street, took it upon himself, the following day, to mount an attack upon the unit in which he believed the men responsible for the assault were living. This he did by firing a number of shots in its direction, initially from a distance, and later at close quarters. He used a rifle and a shortened firearm for this purpose.
6 He managed at some stage to enter the building and whilst inside he discharged more shots. Police were called and set up a perimeter and an operation to defuse the siege which developed.
7 After a standoff lasting approximately seven hours, during which police endeavoured to negotiate with the applicant, both by loudhailer and telephone, he eventually surrendered. However, this was not before a total in excess of 140 shots were fired.
8 Fortuitously no one was hurt in the incident. No shots were fired directly at police but clearly the presence of the applicant in the building, and the discharge of weapons while the police were outside, effectively prevented them from safely investigating the incident; safely, I say, not only for their own personal health, but also for that of other residents inside the building or indeed the residents of other nearby premises.
9 At the time of these events the applicant was suffering from symptoms which were considered to have been consistent with a major depressive episode. He was on bail for the Customs Act offences when he engaged in each of the s 33B and s 93G offences. Additionally, as a matter of some seriousness in relation to these offences, he had a prior record which included offences against public order, as well as offences of assaulting police and resisting arrest.
10 It was accepted by the applicant that the s 33B offence was extremely serious, but it is also contended that the two years’ accumulation of sentence was excessive, and that sentence itself was excessive, for a case where:
(a) no direct use of force was applied or threatened;
(b) the s 33B offence was a continuation of the s 93G offence;
(c) no person was directly threatened after police arrived;
(e) the police investigation was delayed rather than prevented.(d) police were not placed in actual danger compared with potential danger;
11 Those submissions do need to be assessed in the context of the actual events. There can be little doubt that the police were effectively prevented from investigating a situation that was potentially very dangerous. They were not to know whether anybody had been shot inside the premises, nor whether any attempt to approach or enter the building would lead either to a resident, or to themselves, being shot.
12 It was not a situation which can be properly minimised, in its severity, in hindsight, by the knowledge that no one was actually shot or that shots were not fired directly at police. The number of shots fired, the continuation of the shooting, and the unpredictable and disturbed behaviour of the applicant, inside the building, spoke of an incident that was not just potentially grave. In my view it was one that was actually dangerous and accordingly very serious.
13 The decisions cited by the applicant concerning the s 33B offence, R v Hamilton (1993) 66 A Crim R 575, R v Bazzi [1999] NSWCCA 346, R v Watts [2000] NSWCCA 167 and R v Greene [2001] NSWCCA 258, involved factual circumstances so far different from the present case as to provide no assistance whatsoever.
14 Similarly, reference to the Judicial Commission statistics is of no value, having regard to the facts in this case, which were relatively unique. The offences were such as to call for a considerable measure of personal and general deterrence, even allowing for the disturbed mental state of the applicant, having regard to his antecedents, and to the fact that the offences were committed while he was on bail for very serious offences.
15 It was argued that his Honour erred in the application of the decision in Pearce v The Queen (1998) 194 CLR 610. The submission in this regard is tied closely to the submission that the sentence for the s 33B offence was imposed were excessive.
16 It would appear from the reasons for sentence that, in framing the sentencing order, his Honour determined that the appropriate sentences for the Commonwealth offences after the s 16G adjustment, should each be for terms of six years, with a non-parole period of two years and nine months. For the State offences, after a discount for the early pleas, his Honour concluded that sentences of three years and four months were individually appropriate, with a non-parole period, in each case, of thirty months.
17 Having arrived at those individual sentences as being the appropriate sentences, his Honour then made provision, in relation to totality, by reducing the sentences for each of the State offences to fixed terms of two years, to be served cumulatively upon each other.
18 Had his Honour applied the principle in Pearce then the sentences originally considered appropriate should have remained, with an adjustment then being made for totality, in the determination of the extent to which, if any, there should be an accumulation.
19 Had his Honour concluded that the sentences which he considered to have been individually appropriate should be served wholly cumulatively upon each other, then the potential non-parole period, or minimum period of imprisonment, would have been one of five years.
20 Had his Honour considered that they should have been served wholly concurrently, then the non-parole period or minimum sentence for them would have been one of two years and six months.
21 It appears what his Honour in fact did, in order to allow for totality, was to arrive at a total non-parole period, or minimum period, within the range which I have mentioned, of four years, which was then divided equally between the two offences by way of fixed terms, a non-parole period not being specified because of the accumulation of the Commonwealth sentences upon them.
22 That was not a correct application of the rule in Pearce which provides that the sentences considered to be appropriate should be set before considering questions of totality, as well as those of concurrence and accumulation: See, in this respect, the recent decision in this court of R v Bahsa [2003] NSW CCA 36.
23 The former practice of telescoping, or adjusting individual sentences to allow for totality, as occurred here, must now be considered to be incorrect. Error in principle having been shown, the question arises whether some sentence other than that imposed should be substituted.
24 In my view it should not. While temporally connected, the episode can, in my view, be properly considered as having had two distinct phases: the first directed at those who were suspected of having been involved in the earlier assault, and the second commencing with the arrival of police. In each instance, as I have observed, the behaviour of the applicant was extremely dangerous and his offences fell into the upper level of seriousness for matters in respect of which the available maximum sentences were twelve years for the s 33B offence and ten years for the s 93G offence.
25 It was only fortuitous that police or residents were not injured, since the random discharge of a weapon within a residential area, and in the presence of police in a siege situation, could have had utterly unpredictable outcomes.
26 I would consider that the sentences initially considered by his Honour to have been appropriate for each of the State offences would have been well within the legitimate exercise of sentencing discretion and that had they been imposed, as Pearce would suggest should have occurred, a partial accumulation would have been appropriate, leading to the same practical result in relation to the sentencing order which was in fact imposed.
27 If the court were to now interfere it could not do so in a way reducing the effective minimum term of imprisonment of four years, which was fixed on a totality basis, for those two offences. Being unpersuaded, accordingly, that any overall sentencing order, differing from that originally imposed, should have been fixed, I would grant leave to appeal but I would dismiss the appeal.
28 SIMPSON J: I agree with the order proposed and I agree with the reasons of the presiding judge. In my opinion, it would have been at least open to the sentencing judge to consider the two firearms offences as being part of a single episode of criminality and thus as warranting consideration of total or partial concurrence. However, I am not persuaded that his Honour was obliged to approach the matter on that basis, and I agree that the principles of totality require no less a custodial sentence than was in fact imposed. Accordingly, I agree with the orders proposed.
29 WOOD CJ at CL: The orders will therefore be as I proposed.
Last Modified: 05/12/2003
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