R v Nemer

R v NEMER
[2003] SASC 375
Court of Criminal Appeal: Doyle CJ, Prior and Vanstone JJ

DOYLE CJ:The majority of the court consider that the direction pursuant to which the Director of Public Prosecutions has applied for leave to appeal in this matter is valid: see Nemer v Holloway & Ors [2003] SASC 372. Accordingly, it is necessary for the court to consider the Director’s application.
The facts relevant to the application, and the course of submissions before the sentencing judge are to be found in the reasons of Vanstone J. I will not repeat those matters.
The controversy that this case has generated makes it appropriate for me to make some general remarks before I deal with the Director’s application.
The Sentencing Process
The sentencing of offenders who have committed serious crimes is difficult.
The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.
The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.
In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence, and sometimes they point in different directions: Veen v The Queen [No 2] (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.
That is why sentencing an offender is not a precise process. There is no sentence that is exactly right in a given case. In any particular case the most that can usually be said is that an appropriate sentence will be within a certain range. Any sentence within that range is appropriate. Different judges, presented with the one case, are likely to arrive at different results within that range. The different results do not indicate that an error has been made, as long as they are within the acceptable range. They reflect the nature of the sentencing process.
This may be disconcerting to some. But it is important that the public understand it.
It is also important to understand that a court of appeal can interfere with a sentence only if an error has been made. The judges who hear the appeal cannot simply substitute the sentence that they would have imposed, which might well be a different one, reflecting the fact that the process is not precise. They can interfere only if there is an error.
If there is an appeal against a sentence on the ground that it is excessive or inadequate, the court of appeal can interfere only if the sentence is outside the permissible range.
If the appeal is on the ground that some error of law or fact has been made, and such an error has been made, it may be possible for the court to interfere on that ground.
Public Opinion
The courts administer justice on behalf of the community. But they administer justice according to law. The sentencing process is governed by the Sentencing Act and other relevant laws. A judge cannot simply impose the sentence that the judge would like to impose, or that the judge thinks would satisfy the public. To do either thing would be contrary to law.
The judge can take account of public attitudes to the type of crime in question, and public concern about the prevalence of a type of crime or about its effects. In this general way public opinion is relevant. A sentencing judge can also have regard in a general way to a public expectation that serious crime will attract severe punishment. But it is not lawful for a judge to try to identify and then impose the sentence that the public expect. The judge must sentence according to law, not according to the public expectation. In any event, there is no way of knowing reliably what the public as a whole want or expect in a particular case.
On appeal, the fact that many people have publicly criticised a sentence as inadequate cannot influence the court. If the sentence is within an appropriate range, the court cannot interfere. If the court does interfere, it does so because an error has been made, not because the sentence has been widely criticised.
Public Comment on this Case
For these reasons the strong public criticism of the sentence in question, on the grounds of inadequacy, cannot influence the court. The court must proceed according to law.
For the court to increase Mr Nemer’s sentence because it has been strongly criticised would be wrong.
It is vital that all concerned understand that if the court increases the sentence, it does so because an error has been made. The court would not be trying to satisfy the critics.
If the court declines to interfere, it is because no error was made, or because principles of law governing appeals by the Director lead to that result. In that case the court would not be challenging the critics or the Attorney‑General or the government, it would simply be acting according to law.
This does not mean that public criticism of a sentence is wrong or is resented by the court. The public have a right to criticise, and to hear the criticisms of others through the media. This is a legitimate function of the media. But the public need to understand the points I have just made. And Ministers of the executive government should take care, when exercising their right to criticise, and to criticise strongly if they wish, not to contribute to a false public impression that a sentence must be wrong or should be increased because they disapprove of it. The court is entitled to the support of the executive government in the discharge of its function according to law even though, I emphasise, a particular decision may be roundly criticised.
The rights of offenders should not be brushed aside. Mr Nemer’s offence has had serious effects on Mr Williams. It is a tragedy for him and his family. He is entitled to expect the law to be applied properly. Mr Nemer has the same entitlement. His conduct was wrong, and has been condemned by the sentencing judge. But Mr Nemer is entitled to have his case decided according to law.
Prosecution Appeals against Sentence
The Director’s right to seek leave to appeal against sentence, and the court’s power to interfere, are found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). Similar provisions exist in other States.
The High Court has determined that the court should grant leave to the Director to appeal against sentence “only in the rare and exceptional case”: Everett v The Queen (1994) 181 CLR 295 at 299.
The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”: see The Queenv Osenkowski (1982) 30 SASR 212 at 212‑213 King CJ; Everett at 300. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
I have discussed these principles in earlier cases: see, for example, R v Mangelsdorf (1995) 66 SASR 60; Police v Cadd& Ors (1997) 69 SASR 150; Shepperbottom [2001] SASC 31, (2001) 121 A Crim R 69 and Elliott [2001] SASC 101, (2001) 121 A Crim R 254. I refer to my discussion of the principles in those cases, without repeating it here.
Deeply entrenched in our system of criminal justice is a principle that the accused or the offender should not be exposed to double jeopardy. The principle is not a precise one. It manifests itself in various ways. For example, it emerges in the rule of law that a person who has been convicted or acquitted by a judgment of a court that still stands cannot be tried again for the same offence, unless Parliament specifically provides otherwise. In the area of sentencing it manifests itself in the restriction (identified above) on appeals by the Director with a view to increasing a sentence. Exposure to the risk of having a sentence increased, and in particular to the risk of facing a sentence of imprisonment on appeal for the first time, is said to be a form of double jeopardy.
Finally, the cautious approach to prosecution appeals against sentence means that sometimes the approach taken by the prosecutor before the sentencing judge will mean that the court of appeal will not intervene, even though an error has occurred.
In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest: Malvaso v The Queen (1989) 168 CLR 227 at 233 (“Malvaso”). The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court: R v Malvaso & Ors (1989) 50 SASR 503 at 509 – 510 King CJ. The court must make its own decision, acting according to law and in the public interest. In particular, the court is not bound by any agreement or arrangement reached between counsel for the offender and the Director in the course of the sentencing process. As Mason CJ, Brennan and Gaudron JJ said in Malvaso at 233:
“The Court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement.”
The same point was made by King CJ in R v Malvaso & Ors (1989) 50 SASR 503 at 509 – 510 and, at a later stage of the case, in The Queen v Malvaso (1990) 156 LSJS 152 at 156.
But sometimes the manner in which the prosecution has conducted itself in the sentencing proceedings will have an effect on the conduct of those proceedings such that it would be unfair to allow the prosecution to change its approach on appeal. The court must always be mindful of considerations of fairness arising out of the manner in which the hearing is conducted. Likewise, the manner in which the prosecution has put its case may be a factor in deciding whether to grant leave to the Director to appeal. As the same members of the High Court said in Malvaso at 233:
“Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceedings before the sentencing judge and the course of proceedings is relevant to the order that should be made on the Attorney‑General’s application for leave to appeal, the Court may have regard to those circumstances in determining whether leave to appeal should be given.”
The same view was taken by a majority of the High Court in Everett at 302 - 305. A particular illustration of this principle has arisen in cases in which, before the sentencing judge, the prosecutor has indicated that in the prosecutor’s submission a suspended sentence is within the scope of the proper exercise of the judge’s discretion in the circumstances of the particular case. As I have said, such a submission cannot bind the judge. But in cases in which that has occurred, and subsequently the Director has sought leave to appeal against the sentence, with a view to arguing that the judge was mistaken in suspending the sentence, courts have taken account of the fact, when considering whether leave to appeal should be granted, that the purpose of the appeal is to attack an order which the Director has agreed, at first instance, was properly made. In cases like that leave to appeal has been refused on that basis, or the court has indicated that the change of approach is a matter of considerable weight in deciding whether leave to appeal should be granted: see The Queen v Wilton (1981) 28 SASR 362 at 367 ‑ 368 King CJ; Everett at 302 ‑ 305 and Malvaso at 233.
Ultimately the court must act according to law, and having regard to the public interest, and sometimes the court will grant leave to appeal, even though the Director seeks leave to appeal with a view to putting a submission contrary to the submission put by the Director to the sentencing judge. But it remains a relevant consideration that this is what the Director seeks to do.
The Present Case
As I have said, I adopt the statement by Vanstone J of the facts and of the course of the submissions to the judge.
The Solicitor‑General submitted that to decide on Mr Nemer’s culpability the judge had to decide whether, when Mr Nemer fired the shot that hit Mr Williams, Mr Nemer was standing alongside or close to Mr Williams’ van and fired into the van in his direction, or whether he was some distance from the van, perhaps 8 metres or more, and still running towards it.
I agree that this aspect of the facts was material to the sentencing process. If Mr Nemer fired the shot into the van while standing close to it, that would indicate a greater risk to Mr Williams’ life, a greater degree of recklessness on the part of Mr Nemer and would indicate a more significant element of deliberation on his part, compared to the case if he fired at the van from a distance while still running towards it.
This matter remained a material one even after the judge had rejected the submission by Ms Powell that Mr Nemer fired the shot while removing the gun from his pocket, with the intention of aiming it over the top of the van, as he ran towards the van.
Ms Powell submitted to the judge that as Mr Nemer acknowledged that the shot he fired was likely to endanger the life of Mr Williams, and acknowledged his recklessness, and as the prosecution did not suggest that Mr Nemer intended to kill or to harm Mr Williams, it was not necessary to decide just where Mr Nemer was or just what he was doing when he fired the shot. The Director agreed with that submission to the judge. The Director also told the judge that while he could not agree that the facts were as submitted by Ms Powell, the prosecution was not able to dispute that version of facts.
I agree with Vanstone J that the submission by Ms Powell should be rejected. It overlooks the impact on the assessment of culpability of a finding on the matter identified by the Solicitor‑General.
As Vanstone J has demonstrated in her reasons, there was substantial material to support the conclusion that Mr Nemer fired the shot when standing alongside or very close to the side of Mr Williams’ van. A finding to that effect would make Mr Nemer’s offending more culpable.
The fact that the Director wrongly agreed with Ms Powell’s submission, that it was not necessary for the judge to make a decision on this point, did not mean that the judge was obliged to accept this submission. The judge was obliged to sentence on the basis of the material before him. Granted, the judge would have to be satisfied beyond reasonable doubt before he could make the finding which the Solicitor‑General contended he should have made, but there was material before the judge on which it was open to him to make that finding.
I agree with Vanstone J that the judge appears to have accepted the submission by Ms Powell, and to have contented himself with the conclusion that Mr Nemer fired the shot while running towards the van. It appears to me that the judge must have come to the conclusion that it was not necessary for him to make a finding on the point identified by the Solicitor‑General, Ms Powell and the Director having agreed that it was not necessary to do so. In my respectful opinion the judge was wrong in that respect. The point had to be determined.
Should the court grant leave to appeal to the Director, with a view to examining the correctness of the judge’s finding on the facts, and with a view to making a different finding, leading to an assessment that Mr Nemer’s offending was more culpable than the judge considered? I mention here that I agree with Vanstone J that it is too late now, as a matter of fairness, to entertain the submission by the Solicitor‑General that Mr Nemer intended to endanger Mr Williams’ life. That was never raised before the judge. I also agree with Vanstone J that it is now too late to raise the question of the possibility that the barrel of the gun, when handed to the police, was not the barrel used when the shot was fired. Nothing was said about this before the judge. It is unclear what inference should be drawn, if the barrel was changed. But the question of where Mr Nemer was when he fired the shot, and what he was doing at that moment, was raised by the judge and correctly so, even though in the end the judge seems to have accepted the submission that he did not need to decide whether Mr Nemer fired the shot while standing close to the van.
It would be very unusual, although not outside the court’s power, to grant leave to the Director to appeal against sentence, with a view to examining and correcting the findings of fact on which the sentence is based. To do so would not usually accord with the principle stated by the High Court governing appeals by the Director.
There is a further difficulty. Ms Powell put her submissions on sentence, and did not call Mr Nemer to give evidence on the point in question, knowing that the matter was concerning the judge. But it appears from the transcript that she did so, knowing that the Director was going to agree with her submission that the judge did not need to decide whether Mr Nemer fired the shot while standing close to the van, and would not dispute the more favourable version of the facts put forward by her.

Admittedly, the Director’s attitude was somewhat confusing. He told the judge that he supported or maintained the version of facts given by Mr Williams in his statement (and supported by other material) to the effect that Mr Nemer must have been standing very close to the side of the van when he fired the shot. But he also agreed with the submission that it did not matter just where Mr Nemer was when he fired the shot, and said more than once that the prosecution could not dispute Mr Nemer’s version of the facts. Mr Nemer’s decision not to give evidence before the judge might well have been influenced by the knowledge that the Director would agree with Ms Powell’s submission, and would indicate that he could not contest Mr Nemer’s version of the facts. This is one of those exceptional cases in which the defence could have been misled: c.f. The Queen v Perre (1986) 41 SASR 105 at 106 King CJ.
If the court were now to make the finding for which the Solicitor‑General contends, and which Justice Vanstone favours, there is a risk of injustice to Mr Nemer. If the Director had contested Ms Powell’s submission that the judge did not need to decide whether the shot was fired while Mr Nemer was standing close to the van, or had refrained from endorsing the submission, and Mr Nemer chose not to give evidence, this court could proceed on the basis that Mr Nemer had said all he could say or wish to say on the point. But as things occurred, I cannot be satisfied that Mr Nemer would not have given evidence if the Director had indicated that he did not agree with Ms Powell’s submission. The manner in which the sentencing submissions proceeded may well have been affected by the Director’s attitude.
In addition the court should be slow to allow the Director, on appeal, to abandon a submission put below on a material matter, and to put a contrary submission. The court is not bound by the Director’s submissions before the sentencing judge, or by the Director’s attitude before the sentencing judge. Nevertheless, the court does not readily allow the Director leave to appeal with a view to the Director departing in a significant respect from the approach taken before the sentencing judge. That would be the result of granting leave to appeal to the Director, on the application made by direction of the Attorney-General.
Taking all those matters into account, I do not consider it right to grant leave to appeal and then to make the finding of fact adverse to Mr Nemer that Vanstone J would make. I am of that view even though I agree with Vanstone J that, on the material before the sentencing judge, that appears to be the correct finding. However, there is a risk of injustice to Mr Nemer in now making that finding without giving Mr Nemer the opportunity to contest it.
The court could allow the appeal, set aside the sentence and remit the matter to the judge, or to another judge, for the sentencing process to be reopened or commenced afresh. I cannot recall a case in which this court has done that on an appeal by the Director against sentence, but that is not to say that it could not be done. The rarity of this course of action reflects the fact that it is unusual to grant leave to the Director to allow findings of fact to be reopened. As well, broader considerations of justice call for the sentencing process to be concluded as soon as it can be. I have not overlooked Mr Williams’ interests in this, or the public interest in a sentence based on sound findings of fact made after considering all relevant material. But in the end I consider that the court should not remit the matter to the sentencing judge or to another judge to reconsider the facts. I am influenced by the prospect of further delay, and by the fact that applications by the Director for leave to appeal are rarely granted to allow the facts to be reargued. Sending the matter back to the judge or to another judge would amount to allowing the Director to do that.
This is a somewhat unsatisfactory outcome. The sentencing process was compromised. But, in my opinion, a decision not to grant leave to appeal is the appropriate decision.
That means that the court is left with the submission that it should grant leave to appeal to the Director with a view to considering a submission that, on the facts as found by the judge, the sentence is inadequate.
The judge sentenced on the basis that Mr Nemer fired in the direction of the van as he was running towards it.
On that basis, and as the judge found, Mr Nemer was reckless as to the danger to Mr Williams’ life that he caused. There was no reason to do what he did. The two young women were safely in his car. I can only conclude, like the judge, that he allowed his feelings of anger and concern to overwhelm his judgment, leading him to commit an impulsive act. His immaturity helps one understand his act, even if it does not fully explain it. In considering the appropriate sentence the personal circumstances identified by the judge remain relevant. In brief they are Mr Nemer’s young age, his good prospects of reform, his good character and his apparent remorse and acceptance that he did wrong.
When all relevant matters are taken into account, I regard the sentence imposed by the judge as low, but within the acceptable range of outcomes for a young man with a good record and who is unlikely to offend again. Another judge might have imposed a heavier sentence. As I have explained, that does not indicate error, merely that there is a range of sentences appropriate for each case. The decision whether to suspend a sentence of imprisonment or not can be a difficult one, and in this case was particularly difficult. The seriousness of the offence would usually militate against suspension. But the circumstances were unusual and Mr Nemer’s personal circumstances supported an order for suspension. The fact that another judge might not have suspended the sentence does not of itself indicate error by the sentencing judge. I am not satisfied that, on the basis on which the judge sentenced Mr Nemer, the decision to suspend the sentence was outside an acceptable range of outcomes.
Even if I am wrong on that point, I do not regard the sentence as so far outside the acceptable range as to make it a sentence that would shake public confidence in the administration of justice were it to stand. It is not so inadequate that the court is warranted in granting leave to appeal to the Director, bearing in mind that the grant of leave and the allowing of the appeal would not establish any point of principle, and bearing in mind also the fact that there is an element of double jeopardy if Mr Nemer were now required to serve a sentence of imprisonment. The Director’s concession that a suspended sentence was within the judge’s discretion in this case is another factor, although the fact that the concession was made on an erroneous basis means that the concession is not as significant as it otherwise would be.
I realise that those who are critical of the sentence will remain critical of the sentence, and will criticise my decision. As to the sentence, I can only repeat that this was a very difficult case. There were matters capable of supporting the approach that the judge took. The final decision, whether to send this young man to prison or to suspend the sentence and give him a final chance, was particularly difficult.
I should mention here the suggestion made by some people that the judge’s decision was influenced by Mr Nemer’s fortunate background, and would have been different if Mr Nemer came from a less affluent suburb and a less affluent family. Any such suggestion can be dismissed at once. Any young man committing this offence in these circumstances, and coming before the court with a good record like this man’s, and with equally good prospects of reform, would get the same careful consideration of his case, and would have the same prospects of having his sentence suspended. His racial or ethnic origin, his home address and his family’s income would not affect the court’s assessment of the material put before it. To suggest otherwise is to suggest that judges disregard their judicial oath, which requires them to ignore factors of the kind referred to. Anyone familiar with the work of the courts would know that sentencing judges extend leniency, and suspend sentences, for young first offenders who have reasonable prospects of reform, without regard to factors of this kind.
As to the criticism of my decision, I have tried to explain how the principles of law governing appeals against sentence by the Director, and how considerations of justice affecting the particular case, lead to the result that I have reached.
Conclusion
I would refuse to grant leave to appeal.
PRIOR J: I agree with the general remarks made by the Chief Justice. I also agree with His Honour that leave to appeal should be refused if the facts as found by the judge are not to be revisited. I agree with what the Chief Justice has written about that.
However, I do not think that it is in the public interest to permit the sentence to stand on the factual basis accepted by the sentencing judge. The sentencing judge may have been led into error as a result of the submission made by counsel for Mr Nemer and the conduct of the prosecutor during the submissions. In my view the proper administration of criminal justice requires the exercise of the power to seek leave to appeal and appeal in this case[1]. The sentencing process in this case has miscarried to such an extent that leave to appeal should be granted.
[1] Malvaso v The Queen (1989) 168 CLR 227 at 233
In R v Perre[2], Chief Justice King spoke of the obligation upon counsel to decide whether or not to call evidence when there is a conflict between submissions put and depositions. His Honour spoke of a duty to call evidence being cast upon the offender. Exceptionally, that duty might be excused if the defence can “validly claim to have been misled”[3].
[2] (1986) 41 SASR 105
[3] R v Perre (1986) 41 SASR 105 at 106
There is still an onus on the offender to give sworn evidence before the sentencing judge can sentence on a factual basis contradicted by verified statements and sworn evidence not expressly abandoned by the prosecutor[4]. This was a case where the submissions put contradicted the verified statements and sworn evidence. The remarks of King CJ therefore applied. Counsel could not assume that the sentencing judge would sentence upon the basis of her submissions.
[4] R v Lobban (2001) 80 SASR 550 at [17]
The sentencing process here miscarried. The sentencing judge failed to appreciate that he was unable to accept the submission put by Mr Nemer’s counsel given the material before him and the absence of any clearly agreed facts at variance with those statements. Things said by the Director indicated that facts asserted by Mr Nemer’s counsel remained controverted. However, there were other occasions in the course of the submissions when the asserted facts inconsistent with three verified statements were not plainly disputed. The judge appears to have acted on a particular assertion put on Mr Nemer’s behalf because of the various things said, or not said, by the prosecutor.
Whilst saying, more than once, that the prosecution stood by what Mr Williams said in his statement about the pistol being very close to the window and that the prosecution was “in a position of not being able to agree facts”, the Director otherwise indicated that the prosecution could not dispute a version of facts inconsistent with the version of events described by Mr Williams, Ms A and Ms M in their verified statements. It was wrong to put the matter in that way. The version put was disputed. The onus was upon the offender to give sworn evidence because the verified statements were not qualified or abandoned[5].
[5] R v Perre; R v Maitland [1963] SASR 332; R v Vecsey [1962] SASR 127
Counsel for Mr Nemer may have assumed that her understanding of the prosecutor’s attitude to her submissions meant that the judge would necessarily act on her submission that it was not necessary to decide just where Mr Nemer was, or just what he was doing when he fired the shot.
The combined effect of the Director’s stance and the erroneous submission of counsel seems to have led the sentencing judge into failing to sentence on the basis of the material then properly before him. As the Chief Justice puts it, the sentencing judge appears to have accepted the submission of Mr Nemer’s counsel “and to have contented himself with the conclusion that Mr Nemer fired the shot while running towards the van”.
In his sentencing remarks, the judge spoke of the Director of Public Prosecutions and defence counsel being agreed as to the circumstances surrounding the unfortunate events. His Honour said that:
“in the absence of evidence, or inferences to be drawn from evidence, which must be established beyond reasonable doubt, that the shooting occurred other than that which is agreed the sentencing judge has no alternative but to accept those facts”.
After summarising the circumstances in some detail, the sentencing judge referred to Mr Nemer claiming that he was running towards the vehicle and as he took the gun from his pocket, believing the person in the van might attack him, the gun discharged as Mr Nemer was aiming the gun in the vicinity of the vehicle with a view to it firing over the top of the vehicle. His Honour then referred to some parts of the version of events deposed to by Ms A and Ms M and then said:
“…As I indicated during counsels’ submissions, I find it difficult to accept that the gun discharged whilst you were taking it from your pocket with the intention of aiming it over the top of the vehicle, and that it discharged in the course of you raising it to fire across the top of the vehicle. I do not accept that version of events.
However, I accept as I must, that when you fired the pistol, you did not intend to hit the occupant of the van. I conclude that you fired in the direction of the van as you were running towards it, and that the bullet entered the rear window of the van and hit Mr Williams, who happened to turn around at the moment, or just before you fired the shot … .”
The sentencing judge erred. On what was before him, His Honour was not entitled to conclude that Mr Nemer fired the shot while running towards the van. The sentence had to be imposed upon the facts in the evidence and verified statements. The offending was much more culpable on those facts than that based upon the submission wrongly accepted by the judge as agreed.
I accept that it is unusual to grant leave to appeal against sentence with a view to examining and correcting the findings of fact on which a sentence is based. I think leave to appeal should be granted, not just for that purpose but because of the compounding errors which occurred in the course of this sentencing process. The clearly confident assumption made by Mr Nemer’s counsel that the prosecution was not disagreeing with her submission that the judge did not need to decide whether Mr Nemer fired the shot while standing close to the van and would not dispute the more favourable version of the facts put forward by her was substantiated in the remarks upon sentence.
The three verified statements and the evidence with respect to them contradicted the submission. The sentencing judge was not entitled to sentence on that basis. The statements had to be acted upon absent accepted sworn evidence contradicting those facts or an express admission by the Director that the verified facts inconsistent with the submission were abandoned.
Whilst this Court should not readily allow leave to appeal to the prosecution if it involves allowing the prosecution to depart in any significant respect from the approach taken before the sentencing judge, I think the approach taken, though unfortunate and less than clear, did not permit the sentencing judge to sentence on the erroneous view of the properly established facts. Essentially, what the Director did was to err in characterising the offending as not being significantly different whatever the distance from the van when the shot was fired. The verified facts were not abandoned.
The public interest in the proper sentencing process calls for intervention in this case by the grant of leave. Too many errors or misunderstandings, or inappropriate assumptions were made before the sentencing judge. The judge had to make the finding that the pistol was fired from a point close to the van. Despite the agreed view of counsel, such a finding made the offence more serious than the asserted version. I would grant leave to appeal, allow the appeal and set aside the sentence imposed.
However, I would not proceed to dispose of the matter by acting on the verified facts without affording Mr Nemer an opportunity to properly challenge the material before the sentencing judge and this Court. Whilst Mr Nemer’s counsel was “on notice that a submission advanced in mitigation might not be accepted by the sentencing judge”[6], it is open to the respondent to argue that his counsel was misled about the need to call evidence by the concession that there was no significant difference in culpability “whether (Mr Nemer) was eight metres or a metre away”.
[6] R v Lobban (2001) 80 SASR 550 at [21]
Leave to appeal should be granted, the appeal allowed and the sentence imposed set aside. If the respondent declines to give sworn evidence on the factual basis put on his behalf and wrongly accepted by the sentencing judge, I would incline to dispose of the matter in this Court. However I would hear counsel on whether the matter should be remitted to a single judge for the sentencing process to commence afresh.
VANSTONE J: This is an application by the Director of Public Prosecutions (“Director”) for leave to appeal against the inadequacy of the sentence imposed on Paul Habib Nemer on 25 July 2003 for Endangering Life. Some of the history of the matter is set out in Nemer v Holloway & Ors [2003] SASC 372.
In his judgment, the Chief Justice has made general remarks about the sentencing process, public opinion and public comment on this case. I respectfully agree with those remarks.
On 2 September 2002 the respondent pleaded guilty to a charge in these terms:
“Statement of Offence
Endangering Life. (Section 29(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Paul Habib Nemer and [K] on the 19^th day of August, 2001 at Unley, without lawful excuse, discharged a firearm, knowing that the act was likely to endanger the life of Geoffrey Robert Williams and intending to endanger Geoffrey Robert Williams’s life or being recklessly indifferent as to whether the life of Geoffrey Robert Williams was endangered.”
The circumstances in which the crime was committed were as follows. At the time of the offence the respondent was nineteen and a half years of age. He lived at home with his parents and older brothers. At this time his parents were away and on the evening of these events his brothers were out. With the respondent were several young friends including his co-offender, a boy of fifteen years of age, to whom I shall refer as “K”, who was to stay the night at the respondent’s home.
At about 3.00 o’clock in the morning K received a telephone call from a sixteen year old girl, Ms “A”, who was at that time in company with a seventeen year old girl, Ms “M”. Ms A told K that she and her friend were walking home from the city. Both K and the respondent spoke to Ms A and advised her to take a taxi.
About an hour later K received a telephone call from an elderly lady, calling from her home in the Unley area, and advising that Ms A was in trouble. She said she was asked to telephone by Ms A and that Ms A wished K to call her. K then telephoned Ms A, who was extremely distressed, and who told him that she and Ms M were being followed and were in fear of being raped. K passed that information on to the respondent. Hearing this the respondent went to his parents’ bedroom where he knew there was a pistol which was loaded. He took it with him and he and K drove to the area of Unley nominated by Ms A.

The two girls were located in Arthur Street, Unley, and they recognised K and got into the respondent’s car. In the minutes leading up to this point the victim had been in and around Arthur Street on his paper delivery round. The two girls pointed at his van and indicated that the van contained the person who had been following them. At that time the van was stationary in the driveway of a house. In the ensuing seconds the victim, Mr Williams, was shot.
On examination in the Royal Adelaide Hospital about an hour later he was found to have two wounds consistent with one shot. What was apparently the entry wound was to the bridge of the nose. The projectile had passed through the right eye and out through the right temple. The eyeball was missing. There were fractures to the bones of the eye socket and temple.
The respondent pleaded guilty in this court to an offence against section 29(1) Criminal Law Consolidation Act 1935. That subsection is in these terms:
“ 29.(1) Where a person, without lawful excuse, does an act or makes an omission –
(a)knowing that the act or omission is likely to endanger the life of another; and
(b)intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 15 years.”
Although the offence does not require any actual imperilling of life, nor less injury, the court is obliged to take into account, in an appropriate way, any injury resulting from the offence.[7]
[7]Section 10(e) Criminal Law (Sentencing) Act 1988; McCormack v The Queen, CCA, 6 June 1991; Jdgt S2883.1 (Unreported); R v Teremoana (1990) 54 SASR 30.
The sentence imposed upon the respondent was one of three years and three months imprisonment with a non-parole period of two years, that sentence being suspended upon the respondent entering into a $100 good behaviour bond for three years, with supervision during the first two years.
The ambit of the role of prosecution appeals was established in this state in R v Osenkowski (1982) 30 SASR 212. At page 213 King CJ, with whose remarks White J agreed, said:
“The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”
The approach taken has been consistently followed since that time.
As was pointed out by the High Court in Everett v The Queen (1994) 181 CLR 295, the question of whether leave to appeal should be granted is a distinct matter, and involves more than a consideration of the merits of the proposed appeal.[8] In addition the principle against double jeopardy dictates that leave should only be granted in rare and exceptional cases.[9]
[8] Page 303.
[9] Page 305.
Where it is sought on a proposed prosecution appeal to attack an order, the making of which was not opposed by the prosecutor at first instance, that is also a factor tending strongly against the grant of leave.[10]
[10] R v Wilton (1981) 28 SASR 362; Everett v The Queen at 302-303.
In this matter the grounds of appeal include an assertion that the learned sentencing judge erred in suspending the sentence imposed. Suspension of the sentence was not opposed before the judge by the Director, Mr PJL Rofe QC, who appeared personally. It is plain that the Director agreed in advance of the hearing not to oppose suspension. If that were the only complaint, or the principal complaint on appeal, the position taken by the Director would amount to a powerful factor tending against the grant of leave. However, other grounds raise issues of a different kind.
Grounds (a) and (c), which may conveniently be dealt with together, complain, in effect, of error in the facts as found by the learned sentencing judge and a consequent failure to give weight to the gravamen of an offence of this type and to the seriousness of this particular offence.
I have already set out the particulars of the offence to which the respondent pleaded. The way in which the charge was particularized allowed for the respondent to admit to recklessness as to the endangering of life rather than intention. By that plea the respondent admitted only the essential elements of the offence. In terms of his state of mind he could be taken as admitting no more than a realisation that the act of discharging the weapon would endanger life and an intentional carrying out of the act, he being reckless as to whether life was thereby endangered.
When the respondent surrendered to police in the presence of Mr J D Edwardson, barrister, on 24 August 2001, Mr Edwardson handed to police a firearm and ammunition and a letter signed by the respondent. In part it read:
“I provide to police the weapon that was used in the shooting and I admit that I am the person that shot that person I now know to be Mr Geoff Williams. At no time did I ever intend to kill him or cause him physical harm. My only intention was to scare him because I believed that he posed an immediate and serious threat to [Ms A and Ms M]. On the advice of my legal advisers I do not intend to answer any questions.”
Whilst in my view the argument was available on the facts that firing the weapon intending to scare the victim amounted to an intention to endanger life, as opposed to recklessness only, nothing was made before the learned sentencing judge of that distinction, and in particular it was not suggested by the Director that contrary to the way the charge was particularised, the prosecution in fact alleged an intention to endanger life, rather than recklessness. Consequently I do not think it appropriate for this court to entertain such an argument.
Of greater moment was the issue of the respondent’s position in relation to the victim’s van when the shot was fired. When the matter came on before the judge on 7 July 2003 for plea, Ms BJ Powell QC made submissions for the respondent as to the facts. Those included these passages:
“As Mr Nemer ran towards the van and was still about 8 metres away from the van, he took the handgun from his pocket and, as he was running, he raised it. He had never discharged a firearm before in his life. As he raised the firearm from his pocket, he discharged it while running; his intention being to shoot over the roof of the van. …
Mr Nemer believes that he was on the run and as he brought the handgun up into the air, he thinks, he was about 8 metres from the rear of the van. …
He intended it to go over the top of the van. It was a warning shot. He never intended to fire it into the van or hit the van at all. That’s the significant matter for the plea. …
It must be accepted that he never intended to fire into the van either. That’s an important matter because it’s one thing to stand here and say ‘I intended to fire a warning shot which I intended to enter the van, but not hit the driver’. That would be a much more serious and reckless act than a firing intending to go over the top of the van, but unfortunately by reason of recklessness, entering the van.”
There was no challenge to the facts as put to the learned sentencing judge, Mr Rofe advising the court that the facts were for the judge to determine and that the distance between the respondent and the van when the shot was fired was “not such as to make much difference in the degree of culpability”.
Ms Powell’s submissions could be seen as all but inconsistent with the plea of guilty. In any event the learned sentencing judge pointed to the inconsistency between them and the depositions and raised the question of going into evidence. The matter was adjourned for several hours.
Upon the resumption Ms Powell handed to the judge some documents addressing the topic, including written submissions. The latter included the following passages:
“… my instructions are that as Mr Nemer was running towards the victim’s van he took the gun out of his right hand pocket and at that point, that is at the point at which he removed the gun from his pocket, his intention was to let off a shot over the top of the van to scare the man away. As the gun was raised he discharged the gun thereby hitting the rear passenger window and ultimately Mr Williams. …
It is our position, and indeed the position of the prosecution, that whether or not Mr Nemer was two metres away, or eight metres away matters not. What is important, is that Mr Nemer has accepted that at the time the gun was discharged that act was likely to endanger the life of Mr Williams. We maintain our position, and the instructions that we have, that at the time Mr Nemer pulled the gun from his pocket, his intention was to let off a shot over the top of the van to scare the man away. That position, in our submission, is not inconsistent with the reconstructed history of events set out in Mr Williams’ declaration dated 31 August 2001 at page 4, …”
Also provided to the judge was a copy of a letter from Ms Powell to Mr Rofe dated 23 June 2003 offering her client’s plea to endangering life and setting out a factual basis in these terms:
“The factual basis that I intend to put before the Court in the event of your acceptance to this proposal is that he ran about 30 metres from his car before firing the gun. At that time [K] was ahead of him. As Mr Nemer was running towards the victim’s van he took the gun out of his right hand pocket and at that point intended to let off a shot over the top of the van to scare the man away. He acknowledges that in panic he discharged the gun before he had raised the barrel sufficiently over the roof of the van to ensure that the bullet would not hit any part of the van. He further acknowledges that in firing the gun whilst he was running and whilst he was still in the act of raising it into the air was reckless. Moreover, he acknowledges that that reckless act endangered the life of Mr Williams.”
It is noteworthy that neither document contained any admission of a realisation in the respondent that discharge of the weapon would endanger Mr Williams’ life. Of course, so much was accepted by the plea. In addition, and more importantly, the submissions as put were contrary to the statements, verified by declaration, of Mr Williams, Ms A and Ms M, as follows:
Mr Williams:
“Whilst I was reversing or when I stopped I saw a male person, or what I presumed was a male person at the back of the van. I had my head turned to the right to see what was behind me and caught a glimpse of him. The sight of him startled me. For some reason I turned my head to the left. It might have been to try and get another look at this person. As I turned I saw a person, I don’t know what gender, standing on the left side of the van near the window in the sliding door. This could have been the same person or another person, I’m not sure.
Next thing I know, I see a hole up against that window. Now, having thought about it, I presume it was the barrel of a gun that he must have had very close to the window. When I saw this hole, the window of the van was intact. Immediately after this I felt an intense stinging pain in my face and noticed blood immediately.”
Ms A:
“[Ms M] jumped into the rear seat after me, she was sitting behind the front left passenger seat. [Ms M] was still facing along the street in the direction the boys were running, she had one leg in and one leg out. [Ms M] was yelling out to them, ‘Just leave it don’t worry about it, let’s just go.’ I couldn’t speak, but I felt a sense of relief that they were there because I had got into the car. …
The next time I looked up the van was on Arthur Street, facing towards King William Road and it appeared to be stopped. I heard yelling, I can’t remember the words now, it might have been ‘Oi’ and there might have been swearing but I can’t be sure. I saw that Paul [the respondent] was standing near the left rear of the van and he had his arms up, they were both straight and pointing towards the front of the van. I believed at this time that he had a gun, I couldn’t see it but you could tell and the split second after I saw this I heard the shot and the window break.”
In evidence at the preliminary hearing Ms A described the events in similar terms:
“Q.When you brought your head up did you look in the direction of the van.
A.     Yes.
Q.     What did you see.
A.I saw Paul standing at the back left hand side of the back of the van with his arms raised.
Q.     Both arms raised.
A.     Yes.
…
Q.     Could you see if he had anything in his hands.
A.     I figured he did. But I didn’t see. It was pretty dark.
Q.     Why do you think he did.
A.     Because he had stopped running and was standing like that.
Q.     What did you think he had in his hand.
A.     A gun.
Q.     Did you hear something.
A.     Yes. A bang.”
Ms M described the crucial part of the event in her statement in these terms:
“… I was not in the car yet and I spoke to [K]. I said to him, ‘Lets go, forget about it.’ I said this to them because to me it looked like they were going to go after the person in the van. Pauli had already started moving towards where the van was. I knew he was the driver of our car and he wasn’t going towards the driver’s seat.
I don’t think there was any danger to us at that time if we just got in the car and left. I was scared and so was [Ms A] but the man in the van was not any threat to us at all. He was going away from where we were and as he drove past, apart from slowing down and looking in our direction, he did nothing threatening. …
K told me to get into the car again and I did. I saw them, [K] and Pauli walking quickly towards where I had seen the van …
I got into the rear of the car with [Ms A] and started to talk to her … we were there for about a minute when I heard a loud bang. I didn’t know what direction this bang came from but the noise caused me to look up out of the car. I looked down the road … towards where I [had] last [seen] the van and I saw the van again. … I saw Pauli standing on the left rear side of the van and [K] behind the van. They had turned and were starting to run towards the car where we were. …
After we had turned into Unley Road, Pauli said, ‘I shot at him, I shot at him’. He kept on saying this over and over.”
In my view these passages clearly contradicted the submissions put to the court by Ms Powell and they bore on matters going to the heart of the offence. That being the case, if the respondent wished to press his own version of events he needed to give evidence in support of it: R v Vecsey [1962] SASR 127; R v Maitland [1963] SASR 332; R v Perre (1986) 41 SASR 105. These were not matters of inference or interpretation, but concerned the primary facts of the offence. As King CJ observed in R v Perre: (at 105-6)
“The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge.
…
Even in cases in which the prosecution joins with the defence in asking for sentence to be imposed upon an agreed basis which differs from the depositions or from inferences which the judge may be disposed to draw from the depositions, it is for the judge to decide whether he is prepared to act upon that agreed basis.”
The Director was far from agreeing to the basis suggested by Ms Powell, although, as I have recounted, he did not challenge it. At no stage did the Director suggest that the depositions should be discarded. And anyway, throughout the hearing the learned sentencing judge plainly indicated his concern about the submissions put and the conflict with the depositions. That Ms Powell was well aware of the difficulty she faced was acknowledged in the written submissions, which concluded:
“Whichever view of the facts your Honour takes, the prosecution and defence are ad idem when we say that a suspended sentence in these circumstances is within your Honour’s discretion.” (my emphasis)
In the state of the depositions, the respondent’s decision not to give evidence before the sentencing judge is unsurprising. This is not a case where counsel could have overlooked the possibility that the version given would be rejected or where the decision not to call Mr Nemer could have been other than a considered one. In my view just as there could have been no complaint of lack of notice at the eventual rejection by the sentencing judge of some of the defence submissions – and indeed there has not been any – nor could there be any now in the face of a more comprehensive rejection.
In this context of the facts of the offence the Solicitor-General also sought to rely on statements attributed to Mr Nemer by a psychiatrist, Professor Barrett, who prepared a report in relation to the respondent at the request of his solicitor. That report was before the sentencing judge on 7 July. That report read as follows:
“Mr Nemer said that the girls were distressed and screaming over the phone, saying that someone was chasing them and that this person was holding something in his pocket. On this basis, Mr Nemer thought that the man had a gun and that the girls were at risk of being raped. [K] and he quickly drove to the Unley Shopping Centre where they found the girls, who pointed out a van, saying that the man who had chased them was back. Mr Nemer said he pointed the gun at the person to scare him off, and was particularly struck by the way this man just looked back at him, a blank expression on his face, as if he did not care about what he had done to the girls. In retrospect he realizes that the man must been scared, but at the time he thought that he just did not care. He then fired a shot, saying that he wanted to scare the person. The van then drove off.”
If this account of events were accurately recorded by Professor Barrett then it, too, tended to contradict the version put to the court. However no reference was made to this passage during the sentencing submissions. One would have thought that if Professor Barrett had incorrectly related the respondent’s statements to him then counsel for the respondent would have expressly disavowed the account. However, neither counsel at first instance drew attention to it. It cannot be doubted that the judge read the report before sentence. However, since no particular use was made of this passage by the Director and since the judge did not refer to it in his remarks, it seems to be inappropriate now to lay emphasis on it. In any event it adds little to those parts of the depositions to which I have already referred.
In his remarks on sentence, the judge specifically rejected the version of events put to him on behalf of the respondent –that the pistol discharged when being taken from Mr Nemer’s pocket so that it might be aimed over the roof of the van - relying instead on the contents of the depositions. However, from that point it appears that the judge arrived at a version of the events which, whilst drawing on the depositions, also incorporated some of the submissions by Ms Powell, including that the respondent had “fired in the direction of the van as [he was] running towards it”. In that context the judge described the respondent’s conduct as reckless, stupid and dangerous. The Solicitor-General put to the court that having rejected the submissions to the effect that the respondent was running when the shot was fired, there was no basis to find other than that he was standing alongside the van with the weapon pointing in the direction of Mr Williams. If that were accepted then the adjectives used by the judge to describe the conduct were inadequate.

In my view there is force in the Solicitor-General’s submissions. There is a great difference in terms of culpability as between standing next to a vehicle and deliberately firing into it, in the direction of the occupant – which is what the depositions, coupled with the plea, prove the respondent did – as against running towards a vehicle and, at some undetermined distance, firing in its general direction. The difference is in the degree of danger to the life of the occupant, the realisation of that degree of danger and the conscious decision to proceed with the act in the face of realisation of that degree of risk.
I consider that the learned sentencing judge was in error in making the factual findings that he did. Whilst he correctly rejected the version put to him in submissions he, in effect, came up with a hybrid version of the event. It was not open to him to do so. The event was of a much greater seriousness than was reflected by the judge’s remarks upon sentence. I would categorise the respondent’s offence as being at the higher end of the scale of offences of this type.
Ground of appeal (b) alleged error in relation to another factual matter. As mentioned, the respondent asserted that the pistol handed to police on 24 August 2001 was that used in the offence. It was a Browning 9mm calibre semi-automatic pistol. The pistol and associated items were examined by a ballistics expert, Mr De Laine. He found that a spent cartridge case located at the scene of the shooting bore markings consistent with the slide mechanism of that weapon. However, examination of the projectile recovered from Mr Williams’ clothing led Mr De Laine to conclude that it had not been fired through the barrel of the weapon, even though it appeared the weapon had its original barrel. This led to an inference that the barrel on the pistol had been changed.
One would have thought that during submissions some mention would have been made of this curious feature of the matter. But it was not raised by anyone. Nor was it mentioned in the judge’s remarks upon sentence.
The Solicitor-General put forward various possible explanations as to what might have led to the barrel of the pistol being changed for another, subsequent to the shooting, or more likely both prior to and subsequent to, the shooting. He put that the issue had relevance to the level of access to firearms which the respondent had and that it showed a degree of deliberation as opposed to a state of panic prior to the offence.
In my view it is unfortunate that this issue was not explored before the sentencing judge. However, even accepting the unchallenged opinion of Mr De Laine, it is not clear what inferences should be drawn. Inasmuch as the learned sentencing judge did not attach any weight to the issue it seems inappropriate now to do so. I consider that this ground of appeal is not made out.
I turn then to the complaint that the sentence was manifestly inadequate, being ground (d). I have already set out my view that the offence was a more serious one than was reflected in the remarks on sentence of the judge. On the other hand there was much to be said in the respondent’s favour on a personal level. The judge laid significant emphasis on his youth, both as affecting his judgment on the night of the offence and also in terms of his rehabilitation. It was demonstrated to the judge that the respondent had an excellent school record and was well regarded both at his former school and within the community. A number of references were submitted. It was put that the respondent was shameful and remorseful as to his conduct and had suffered emotionally and psychologically since the incident. Professor Barrett expressed the opinion that the respondent had suffered from a “reactive depression”, characterised by a complex array of feelings arising from realisation of the seriousness of his conduct. Apart from one offence of making a false report to police, for which the respondent was dealt with six months previously, he had no court appearances. The judge gave significant credit for the respondent’s plea of guilty. Indeed, despite the fact that the plea was not entered until some ten months after the respondent’s first arraignment, and on the day which was to be the first day of trial, the judge gave a discount of approximately one-fifth from a starting point of four years imprisonment. In my view that was an overly generous allowance for the plea.
In any event I have concluded that the starting point was too low and the head sentence imposed was manifestly inadequate. Even on the facts as found by the learned sentencing judge I would have reached that conclusion. However, assessing the seriousness of the offence by reference to the depositions, it seems to me that even giving full weight to the respondent’s age, prior record and other personal matters, the sentence was far below that which should have been imposed. If one were to follow the approach of the learned sentencing judge and indicate what sentence would have been imposed but for the plea, then I would have thought a head sentence of six or seven years was appropriate. Even allowing the generous discount given for the plea by the judge, that would lead to a head sentence of no less than four years and nine months imprisonment. To my mind that is the very lowest sentence that could properly have been imposed in this case. In recognition of the age of the respondent and the other personal matters put on his behalf, and the circumstances leading to his being sentenced again, I would now be inclined to impose an unusually low non-parole period.
If it is accepted that the learned sentencing judge fell into error in his categorisation of this crime and that the sentence he imposed was manifestly inadequate, then the question of suspension of the sentence needs to be looked at afresh. Of course the seriousness of the offence is an important factor in determining whether there is “good reason” to suspend. In these circumstances it is unnecessary to examine further the approach taken by the learned sentencing judge on the facts as he found them, or to consider the question of whether, in seemingly approaching the question of suspension as one antecedent to the determination of the length of the head sentence, His Honour fell into error.[11] I consider that such is the seriousness of the offence that notwithstanding the matters put in favour of the respondent, and notwithstanding that the Director did not originally oppose that course, suspension of this sentence would be inappropriate.
[11]R v Palliaer (1984) 35 SASR 569; Dinsdale v R (2000) 202 CLR 321 per Kirby J, [76]‑[80].
I turn back then to the question of leave.
In this case there are factors which militate against the grant of leave. Those are that the respondent is a young man who, apart from one blemish, has previously been of good character and that there has been in this case suspension of the sentence, so that the respondent has been told, in effect, that he will not have to serve the sentence if he obeys the bond. Moreover, as seen, the version of facts put forward by him before the learned sentencing judge was not challenged by the Director, any more than was suspension of the sentence.
In Malvaso v R (1989) 168 CLR 227, 233 in a joint judgment, Mason CJ, Brennan and Gaudron JJ said, in effect, that while the court’s sentencing discretion cannot be fettered by a plea bargaining agreement and such an agreement cannot bind the Attorney-General not to exercise his statutory right to appeal, if such an agreement has affected the course of proceedings that is a factor going to whether leave should be given. Deane and McHugh JJ, in a separate judgment, agreed with that principle.
Notwithstanding these matters, in this case the errors of fact, the plainly inadequate sentence and the seriousness of the offence dictate that considerations of public interest must prevail. The public interest would not be served by allowing the sentence to stand. To do so would tend to erode the standards of punishment that are necessary to operate as a deterrent to persons minded to take firearms onto the street and to use them to their own ends, and would undermine confidence in the criminal justice system. In my opinion this is an exceptional case and justice dictates that leave should be granted and that the appeal should be allowed.
I would grant leave to appeal, allow the appeal and quash the sentence imposed at first instance.
Unfortunately there is not agreement in this court as to the disposition of this matter. On the view of the case that I have taken there is no impediment to proceeding forthwith to impose a new sentence on the basis of the depositions and other material before the sentencing judge. That would have been the course I should have adopted. However, recognising that taking that position would mean that there is no agreement in the matter beyond the setting aside of the sentence, I am prepared to acquiesce in the course proposed by Justice Prior.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.     Malvaso v The Queen (1989) 168 CLR 227 at 233
2. (1986) 41 SASR 105
3.     R v Perre (1986) 41 SASR 105 at 106
4.     R v Lobban (2001) 80 SASR 550 at [17]
5.     R v Perre; R v Maitland [1963] SASR 332; R v Vecsey [1962] SASR 127
6.     R v Lobban (2001) 80 SASR 550 at [21]
7.Section 10(e) Criminal Law (Sentencing) Act 1988; McCormack v The Queen, CCA, 6 June 1991; Jdgt S2883.1 (Unreported); R v Teremoana (1990) 54 SASR 30.
8.     Page 303.
9.     Page 305.
10.    R v Wilton (1981) 28 SASR 362; Everett v The Queen at 302-303.
11.R v Palliaer (1984) 35 SASR 569; Dinsdale v R (2000) 202 CLR 321 per Kirby J, [76]‑[80].

[2003] SASC 375

7 November 2003