Razzak v Regina

[2008] NSWCCA 304

Reported Decision: 191 A Crim R 530

New South Wales

Court of Criminal Appeal

CITATION:	Razzak v Regina [2008] NSWCCA 304
HEARING DATE(S):	11 November, 2008
JUDGMENT DATE:	16 December 2008
JUDGMENT OF:	Allsop P at 1; Blanch J at 6; Hall J at 93
DECISION:	1. The appeal against conviction in respect of counts 4, 6 and 8 of the indictment allowed and the convictions and sentences quashed and verdicts of acquittal entered. 2. The appeal against conviction in respect of counts 2 and 9 dismissed and the convictions confirmed. 3. Leave granted to appeal against the sentences on counts 2 and 9 but appeal dismissed.
CATCHWORDS:	Criminal law - length of jury deliberations - unsafe and unreasonable verdicts - circumstantial evidence - inconsistent verdicts - Evidence Act (leave to cross-examine under s38)
LEGISLATION CITED:	Crimes Act, 1900, s29, s33A(1), s33A(2), s93G(1)(b) Criminal Appeal Act, 1912, s6(1), s6(3) Evidence Act, 1995, s38, s60, s66, s135, s137, s192
CATEGORY:	Principal judgment
CASES CITED:	Adam v The Queen (2001) 207 CLR 96 Black v R [1993-1994] 179 CLR 44 Blewitt v The Queen (1988) 62 ALJR 503 Hargan v The Queen (1919) 27 CLR 13 Knight v The Queen (1992) 175 CLR 495 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 Parker v R [1962-1963] 111 CLR 610 R v de Simoni (1981) 147 CLR 383 R v Esposito (1998) 45 NSWLR 442 R v Le (2002) 54 NSWLR 474 R v Micallef (2003) 136 A Crim R 127 R v Mundine [2008] NSWCCA 55 R v Parkes (2993) 147 A Crim R 450 R(Cth) v Petroulias (No. 29) [2007] NSWSC 1005 R v Ronen [2004] NSWSC 1298 R v Stokes and Difford (1990) 51 A Crim R 25 Ratten v The Queen (1974) 131 CLR at 516 Weiss v The Queen (2005) 224 CLR 300 Whitehorn v The Queen (1983) 152 CLR 657
PARTIES:	Mohamed Razzak (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/00003912
COUNSEL:	M C Ramage QC (Appellant) L Wells (Respondent)
SOLICITORS:	Jeffreys & Associates S Kavanagh, Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0590
LOWER COURT JUDICIAL OFFICER:	Hock DCJ
LOWER COURT DATE OF DECISION:	23 March, 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Mohamed Razzak

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/00003912

ALLSOP P

BLANCH J

HALL J

16 December, 2008

Mohamed RAZZAK v Regina

1 ALLSOP P: I have had the advantage of considering the reasons of Blanch J. Having considered the material at the trial, there is nothing that I would wish to add to his Honour’s reasons on the conviction appeals. The views that his Honour expresses reflect mine. As to the application for leave to appeal against sentence, I also agree with his Honour’s reasons, though I would add the following comments of my own.

2 I have given anxious consideration to the question of the sentences for convictions that are not to be set aside. Mr Ramage on behalf of Mr Razzak quietly, but powerfully (if I may be permitted to say), emphasised the relative youth of Mr Razzak and the likely heavy burden of his sentence. There are also the considerations contained in the psychologist’s report, and the family circumstances to which Blanch J makes reference.

3 Giving the fullest possible weight to these considerations, they do not lead to the conclusion that the sentences that were imposed were or are manifestly excessive. This is not the occasion to discuss the relative merits or efficacy of the concepts of specific and general deterrence. These notions, however, undoubtedly form a integral part of the fabric of the law concerning sentencing. It is important that Mr Razzak appreciate the reasons for a sentence of this kind, given that it will affect him and his family so directly.

4 The residents of Mons Street, Condell Park (not just MD and his associates) were subjected to a deliberate, and no doubt terrifying, episode of wilfully dangerous and violent activity which could have caused serious injury or death to children or men or women going about their daily lives at or near their homes on a Saturday afternoon. Of course, Mr Razzak should only be subjected to punishment for the crimes for which he has been duly convicted. But these crimes reflected a deliberate attack on MD, the execution of which put at risk the lives of others in a suburban street.

5 The residents of Mons Street and the people of New South Wales are entitled to expect that attacks of this kind will not occur. They are also entitled to expect (and anyone who might contemplate such activity should understand) that the undertaking of an attack of this kind will be condemned by the courts in unambiguous terms. The sentences that remain after the setting aside of the convictions on counts 4, 6 and 8 are not excessive. They were and are not at the outer limit of severity for these particular crimes committed by Mr Razzak. They remain within the range that legitimately reflects the serious criminality of the acts for which he has been convicted.

6 BLANCH J: The appellant appeals against convictions and sentences in the District Court. The trial began on 5 February, 2007 and the jury retired to consider its verdict on 12 March, 2007. The verdicts of the jury were returned on 23 March, 2007.

7 The appellant stood trial with two co-accused, Rabia Abdul-Razzak and Samear Razzak. They were each charged with shooting at MD with intent to murder with an alternative count of maliciously discharging a loaded firearm with intent to do grievous bodily harm to MD in company. The three co-accused were also charged with similar charges in respect of Mohamed Douar, Bassim Said and Rami Homsi. They were also charged with one count of firing a firearm in a public place. The appellant was acquitted of each of the four charges of shoot at with intent to murder but he was convicted of the four alternate charges of maliciously discharge a loaded firearm with intent to do grievous bodily harm in company and he was also convicted of the charge of firing a firearm in a public place. The two co-accused were acquitted of all counts.

8 The offence of discharging a firearm with intent to do grievous bodily harm in company is contrary to s29 of the Crimes Act, 1900 which specifies a maximum penalty of 20 years imprisonment. The offence of firing a firearm in a public place is contrary to s93G(1)(b) of the Crimes Act, 1900 which specifies a maximum penalty of ten years imprisonment. The sentences imposed were as follows:

1. On count 6 relating to the victim Bassim Said eight years fixed term from 27 July, 2005.
2. On count 9, which was the charge of firing a firearm in a public place, four years fixed term to date from 27 July, 2005.
3. On count 8 which related to the victim Rami Homsi eight years from 27 January, 2006.
4. On count 4 which related to the victim Mohamed Douar eight years fixed term from 27 July, 2006.
5. On count 2 relating to the victim MD a non-parole period of eight years to date from 27 July, 2006 with a balance of term of four years, making a total sentence of 12 years to date from 27 July, 2006. The non-parole period was set to expire on 26 July, 2014.

The effective total sentence was one of 13 years with a nine year non-parole period.

9 MD gave evidence that he was living at 10 Mons Street, Condell Park on 8 May, 2004 and he had lived there for more than seven years with his wife and children. He said that at about 4.15 p.m. he drove his friend Mohamed Douar to the Condell Park shops and then back home. As he drove up to his house he saw a light coloured Honda parked near the tree outside his house and he saw two friends, Rami Homsi and Bassim Said standing in front of the car. He parked in front of that car and he and Douar got out and had a conversation with Homsi and Said. His mobile phone rang and he answered it and while speaking on his phone he heard a shot and he saw a white car travelling along Mons Street towards Milperra Road. This call was apparently monitored by the Police and occurred at 5.19 p.m. He thought it might have been passing No. 6 Mons Street when he saw it. He said he could not recall the speed the vehicle was travelling. He jumped behind a tree but was hit by a bullet. He looked around the tree and saw the car was a Toyota Rav 4. He said he instantly recognised three of the occupants. He said Samear Razzak was sitting in the front passenger seat, the appellant was sitting behind him and a person he knew by the name of Balaboof, who was the son of Ahmed Razzak, was protruding out of the sunroof of the vehicle. He said he had known all three for a number of years and the appellant since 1995.

10 He could see that Samear Razzak was holding a black Glock pistol in his right hand and was firing it. He said at first he was firing in the air but then he fired directly at him. He said the appellant was leaning out of the passenger rear door window with his arms and upper body out of the car. He was holding a black Glock pistol in his right hand and an extended magazine in his left hand. He said the appellant was taking aim and shooting directly at him. He said the man Balaboof had his upper body out of the car and was shooting bullets into the air but as he came closer he shot at MD and when he passed he started firing into the air again. He recognised the driver of the car but he was not able to specify a name. He said he did not know the other passenger sitting behind the driver. The last few shots occurred when the car reached No. 14 Mons Street and some of the shots hit a truck parked out the front and some penetrated the house next door. The victim managed to get up his driveway before collapsing on the ground at the back of his house and he asked his son to call the police and the police and ambulance subsequently arrived. In cross-examination he said the appellant had been shooting at him and nowhere else. He said he had known the appellant since he was 11 or 12. He could not recall how many times he had seen him but said it was “a few times – a lot of times”.

11 Mohamed Douar said he and the victim arrived at the victim’s place at about 5.00 p.m. He said that after they had parked, a vehicle containing Bassim Said and another person pulled up. He said after that a four-wheel drive car, possibly a Toyota, drove past at about 50 km per hour. He thought there were three or four people in the car. He said a number of shots were fired from the car at the group of men but he did not recognise anyone in the car and did not remember seeing any guns. He gave some assistance to the victim after the shooting.

12 Leave was granted under s38 of the Evidence Act, 1995 to cross-examine this witness who had made a statement on 2 December, 2004. In that statement he said he had a clear view of the front passenger seat and Samear Razzak who had a black gun and was shooting towards them. He also saw the appellant kneeling on the seat holding the seat with his left hand and holding a gun with his right hand. He said the appellant’s arm was extended and he was pointing the gun at the group. The appellant had a smaller black gun with an extended magazine and he was firing more than the other two and shooting the whole time. He also said that sitting behind the driver and shooting as well was a person he knew as Balaboof Razzak. He said that as the car drove past they continued to shoot and that the victim was behind a tree. In a further statement on 20 December, 2004 he said that he originally told the police he had seen nothing because he was too scared to get involved in case someone came after him.

13 This witness agreed that he had appealed to the Court of Criminal Appeal against a sentence he had received for an unrelated drug offence and he swore an affidavit promising assistance in this matter based upon the statement he had made on 2 December, 2004. He also said that not everything in the statement was true but he admitted he had identified the appellant and the co-accused. In cross-examination he said that some of the details were right but he could not identify anyone in the car.

14 The man Bassim Said said he went with Rami Homsi to the victim’s place. He said when they pulled up the victim and Douar were standing and talking out the front and Homsi parked his car behind the victim’s car. They got out and were talking to the victim and Douar when he heard shots and he dropped to the ground. While he was on the ground, he said he could see nothing because he had his head down but after the shooting stopped he saw the victim had been wounded.

15 Rami Homsi gave evidence that he was driving his Honda Prelude with Bassim Said as a passenger and they went to Mons Street on 8 May, 2004. He said they arrived at the victim’s house somewhere between 4.30 p.m. and 5.00 p.m. and they saw the victim and Mohamed Douar outside. He parked his car behind the victim’s car and they got out and began talking to the victim and Douar. He was about to leave when he heard gunshots. He dropped to the ground and stayed down but walked around his car for safety. He indicated that at the time of the shooting there were a few children in the front yards of the houses.

16 The Police collected 22 fired cartridges from the vicinity of the shooting consisting of twelve .99mm ammunition and ten .40mm calibre ammunition. The latter ammunition could be fired by a Glock pistol. The cartridges were spread over a distance of 83 metres. A white Toyota Corolla car was damaged to its front windscreen, there was damage to a large tree which had missing bark, the premises next door to the victim at 8 Mons Street had damage to the flyscreen of the window of the master bedroom with corresponding damage to a wall inside the bedroom caused by a bullet.

17 On 26 July, 2004 Detective Senior Constable Walker executed a search warrant at 29 French Street, Bankstown. In the second bedroom lying on the carpet south of the bed he found a Glock .23 self-loading pistol. It was black and had a magazine inserted in the grip. It contained 15 cartridges with another magazine lying next to it which contained two cartridges. The appellant was in the unit at the time the police officer arrived. Swabs were taken from the pistol and the forensic biologist’s evidence was that the major component of the DNA was a mixture from two individuals. She said the appellant could not be excluded as one of the major contributors and it was 1,000 times more likely to obtain this major profile if it originated from the appellant and an unknown unrelated individual than from two unknown unrelated individuals. She agreed there was no way of knowing how the DNA got on the gun nor how long it had been there.

18 A ballistic expert who examined the Glock .23 found in the French Street unit gave evidence that the ten .40mm cartridges found at the scene of the shooting were fired from that Glock pistol.

19 The lessee of the French Street unit, Adam Khlil, gave evidence that the appellant came to stay in his unit. At first he stayed in the lounge room and then in the second bedroom. He noticed the appellant had a Glock pistol and one day he saw it in a bag on the floor and he saw the appellant handling the gun. He said he told the appellant he did not want the gun in the unit and the appellant told him he would get rid of it.

20 In the appellant’s case evidence was tendered that sunset on 8 May, 2004 was at 5.09 p.m. and that civil twilight ended at 5.35 p.m. and nautical twilight ended at 6.05 p.m. Evidence was also called from Brian McDonald, a consultant molecular geneticist, who prepared a DNA report. He found there were three contributors to the DNA on the pistol and was critical of the testing done by Freedman.

Ground of Appeal 1

21 The first ground of appeal is that the trial miscarried but this assertion is based on the remaining grounds of appeal.

Ground of Appeal 2

“The jury was kept deliberating for too long.”

22 The jury retired to consider its verdict at 3.16 p.m. on 12 March, 2007. The verdicts were returned at 3.05 p.m. on 23 March, 2007. The trial judge gave a direction in accordance with Black v R [1993-1994] 179 CLR 44 on 15 March at 2.42 p.m. On 16 March counsel for the appellant raised concerns about the length of time being taken by the jury and on 19 March counsel for a co-accused expressed similar concerns. On 20 March counsel for the other co-accused expressed concerns. An application by all counsel for the three accused to discharge the jury on this basis was rejected on 20 March.

23 The submission is made that the jurors could not adequately recall the witnesses after 11 days and would give too much weight to the transcript. It is also submitted that after such a long time jurors are more likely to compromise their views.

24 The trial itself lasted 16 days and taking into account the intervention of a weekend and the loss of a half day for a juror to attend a funeral, the actual period of deliberation was in reality less than eight days although the verdict came 11 days after the jury were sent out. At no stage did the jury indicate they would not be able to reach a verdict on any counts. The question asked before the Black direction was about unanimity in respect of “any of the defendants” and after the Black direction, no further difficulty was adverted to by the jury.

25 There are many trials which last longer than this trial and it is not uncommon for jurors to have to recall the evidence of witnesses a month or months after that evidence is given. It would not be appropriate to specify an arbitrary period after which a jury should be discharged. Each case should be considered on its merits and in this case where there were multiple accused facing multiple counts and significant attacks on the credibility of some witnesses, it is not surprising the jury needed considerable time to consider the verdicts. I would dismiss this ground of appeal.

Ground of Appeal 3

“The verdicts of conviction were unsafe and unreasonable.”

26 This ground is argued on the basis that the reliability of the evidence of MD’s identification of the two accused who were acquitted must have been rejected. It is certainly true that the jury was not prepared to convict on this evidence even supported to the extent it was by the evidence of Douar.

27 The points raised in this respect on behalf of the appellant are that it was twilight and one witness described the light as dim. The shooting was at 5.19 p.m. and civil twilight ended at 5.35 p.m. MD said he had jumped behind a tree for protection and it is said he was not in a good position to observe. He is supported by the statement made by Douar but neither Said nor Homsi saw anything of the shooting because they were on the ground protecting themselves. Criticism is made of various accounts by eye witnesses and it is true there are discrepancies in the accounts given. It was, however, a brief episode where witnesses might be expected to be fearful and under stress. It is not unusual in such cases for discrepancies to occur. The question is whether they are of such a kind as to discredit the evidence.

28 In this case I do not believe it is material that Said and Homsi did not see MD dive behind a tree. They were obviously more concerned with their own situation. Nor is Mrs Raso’s account that “all the boys dropped to the floor, got up and got in the car and took off” in a general sense inconsistent with the other evidence. Nor does any other account contradict the essential features of the case that the four men were standing outside the victim’s premises when a car came by firing shots and they sought cover.

29 The claim is made that MD was demonstrated to be an unreliable witness. In support of that proposition it is pointed out that he said that he heard bullets hit the tree and saw bullet holes in the tree whereas the police did not locate any bullet holes but did see an area of bark missing off the tree. He also described the other men on the footpath as freezing in their positions and not as dropping to the ground. He also said that he was bleeding behind the tree and he put his hands on the wound to stop the bleeding and then subsequently touched the tree but no blood was found on the tree or on the ground near the tree. Blood was found on the driveway.

30 It is claimed the opportunity to identify was also difficult because of the speed of the car going by. MD said he could not estimate the speed. The witness Elharis said the vehicle was speeding. The witness Raso said the vehicle “came screeching around the corner from Eldridge Road and screeched past her”. Douar said the car was doing 50 kph.

31 These matters are all matters for a jury to consider in the light of the directions the trial judge gave. No challenge is mounted here to the directions given by the trial judge as to identification evidence. That is understandable because the directions given by the trial judge were careful, full and drew appropriate attention to matters for the jury to consider.

32 The challenge which is mounted in respect of this ground is that the verdict is “unsafe and unreasonable”. This ground is based upon s6(1) of the Criminal Appeal Act, 1912 which states that the Court of Criminal Appeal must allow an appeal against conviction if the Court is:

“… of opinion that the verdict of the jury should be set aside on the grounds that it is unreasonable or cannot be supported, having regard to the evidence, or that the judgment of the Court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice”.

The High Court considered the history of this section of the Act in M v The Queen (1994) 181 CLR 487. The majority of the Court in a joint judgment of Mason CJ, Deane J, Dawson J and Toohey J considered the terms which have been used over the years in setting aside a verdict as unreasonable. These terms include “unjust or unsafe”, “unsafe or unsatisfactory”, or “dangerous or unsafe”, see at page 492. They went on to quote the view of Isaacs J in Hargan v The Queen (1919) 27 CLR 13 at page 23:

“If (the appellant) can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.”

33 They also quoted the statement of Barwick CJ in Ratten v The Queen (1974) 131 CLR at page 516 that:

“It is the reasonable doubt in the mind of the court which is the operative factor”.

34 It was suggested in the majority judgment that some cases had indicated that such broad tests place insufficient emphasis upon the fact that the jury had seen and heard the evidence. In Whitehorn v The Queen (1983) 152 CLR 657 at page 687 Dawson J said:

“In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness’s evidence by seeing and hearing that evidence given … These considerations point to important differences between the functions of the jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot.”

35 In M v The Queen Brennan J at page 504 to 505 expressed the view that the test was “…to determine whether a jury, acting reasonably and appreciating the burden and standard of proof, could have convicted on the evidence available to support the conviction.” Applying that test to the facts of that case he concluded the conviction should not be overturned whereas the majority concluded the conviction should be overturned. McHugh J at page 525 came to the conclusion that the appropriate test was “If, after considering the evidence, the court concludes that a reasonable jury must have acquitted, the verdict is unreasonable even though there may be sufficient evidence, in law, to support the verdict.” Applying that test he also concluded the conviction should stand.

36 In the majority judgment at page 494 it was said:

“But it is, we think, possible to make too much both of the view expressed by Barwick C.J. and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”

37 In the context of an appeal relating to the application of the proviso to the various Criminal Appeal Acts in Australia in Weiss v The Queen (2005) 224 CLR 300 in a unanimous judgment of six judges, the High Court said at paragraph 39 on page 315:

“Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.”

And at paragraph 41 on page 316 it was said:

“That task is to be undertaken the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.”

38 The identification evidence in this case does need to be considered with care bearing in mind it was dusk, the incident happened quickly and the victim was diving away to save his life so that he did not have the benefit of a calm observation. On the other hand he was recognising someone he knew and not a stranger and not from any great distance. He was somewhat vague about how often he had seen the appellant but his answers demonstrated he had known him over a considerable period of time and recognised him instantly. Moreover he identified the appellant as one of the shooters to Senior Constable Higgins that evening while he was being conveyed in an ambulance from the scene of the shooting.

39 The evidence of the victim is supported by the statement of Douar to the extent that can be relied upon, bearing in mind the changes in his version and that he had been attempting to gain an advantage for himself in his own sentencing proceedings and that he did not come forward to make the statement until seven months after the event.

40 The finding of one of the guns used in the shooting incident in a flat occupied by the appellant is another piece of evidence which is available to the Crown to help prove the case. The evidence of Khlil proves the association of the appellant with a Glock pistol in that unit. The DNA evidence is not such as to prove anything other than a possible association with the gun. It cannot prove when that association might have been. It is the fact it was found in the premises occupied by the appellant and where he was seen in possession of such a gun beforehand. That is significant evidence.

41 In R v Micallef (2003) 136 A Crim R 127 Dunford J said at [44]:

“I am satisfied that in the present case it was open to the jury to be satisfied that in the ordinary course of human experience and affairs, the combination and totality of the circumstances proved by the Crown were not consistent with the innocence of the appellant; and to be satisfied beyond reasonable doubt that he was the second person involved in the armed robbery. It was essentially a question for the jury representing, as it does, the common experience of the community, and I can see no significant possibility that an innocent man has been convicted.”

42 In this case it is the combination of the pieces of evidence which, on my independent assessment of the evidence, amount to proof beyond a reasonable doubt of the guilt of the appellant. MD was positive in his recognition of the appellant. From the totality of the evidence it was clearly light enough to be able to see. He nominated the appellant as one of the shooters to the police immediately after the shooting. He also said that Glock pistols were used and even though he said all the pistols were Glocks and that is clearly not correct, a Glock pistol was recovered and identified as one of the weapons used. Furthermore, a Glock pistol was found in premises occupied by the appellant just over two and a half months after the shooting and where the evidence was that the appellant had been handling such a pistol sometime before it was found by police. It is that evidence, leaving aside the evidence of the witness Douar, which in my view proves the guilt of the appellant beyond reasonable doubt and consequently it was open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty. I would dismiss this ground of appeal.

Ground of Appeal 4

“The verdicts were inconsistent.”

43 This ground relies on the assertion that the verdicts of acquittal in respect of the two co-accused cannot be reconciled with the conviction of the appellant. Nor can his conviction be reconciled with the acquittal on the charge of shoot at with intent to murder. It can be seen from what I have said in relation to Ground 3 that in my view the evidence in relation to the finding of the gun was a significant part of the Crown case against the appellant. The jury obviously were not prepared to accept the evidence of MD of the identification of the two co-accused even bearing in mind the earlier statement of Douar. The critical difference is the evidence of the finding of a gun used in the shooting in premises occupied by the appellant and that does explain the different verdicts.

44 In MFA v The Queen (2002) 213 CLR 606 at 617 it was stated by Gleeson CJ, Hayne and Callinan JJ:

“Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasized in MacKenzie . They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.”

45 Because of the difference in evidence available against the appellant as opposed to the evidence available against the two co-accused there cannot be said to be any inconsistency in those verdicts. Nor can there be said to be any inconsistency with the verdict the appellant was not guilty of shooting with intent to murder. It was entirely a matter for the jury to determine if an intent to kill was proved. In view of the fact that the car carrying the shooters went past without stopping, it can be readily understood that a jury might have a doubt about proof of an intent to kill.

Ground of Appeal 5

“The verdicts of convictions on the 4th, 6th and 8th counts were unsafe and unreasonable.”

46 This ground raises a question as to whether the verdicts of guilty in respect of the offences of shooting at Douar, Said and Homsi are unreasonable and again this requires an examination of the evidence by this Court to assess whether the evidence is sufficient to prove the guilt of the appellant beyond a reasonable doubt.

47 The victim MD said Samear Razzak who was in the front passenger’s seat was at first shooting in the air and then “he continued to shoot directly at me” and after the car had passed the house he continued to shoot in the air. He said as Samear Razzak was shooting at him he was looking at him and pointing the gun at him.

48 MD said when he first saw Balaboof he thinks he was sticking out of the sunroof. When he first saw him he was shooting “in the air” and then “as he came closer to me he was shooting bullets at me and as he passed No. 12 or No. 14 he started to shoot back up in the air”.

49 MD first saw the appellant leaning out of the rear passenger’s window with his arms and upper body out of the window. Then he said “He was shooting at me, I actually believe he was the one that actually shot me.” He said he believed the appellant was “aiming at him”.

50 Douar in his evidence said “There was a car driving past and like it shot at us”. He was asked “Did you see any shots fired at you as the vehicle was going past?” He said “No, just went, like turned around and went down.” He said he did not see any shots fired at the other three. Subsequently the Crown was given permission to cross-examine him on the earlier statement he had made. He agreed in that statement he had said “I realised someone was shooting at us.” He also had said “I could feel bullets flying past my head.” He said also that the appellant “was pointing the gun at the group of us.” He also said as the car drove past “they continued to fire at us.” He said he was “fearful for my life as I thought I was going to be shot.”

51 The other two persons standing outside the premises were Said and Homsi. Neither of them saw the shooting because they were on the ground taking cover. The only direct evidence then comes from the victim MD and Douar and their accounts are contradictory on the question of whether any of the shooting was directed at Douar, Said or Homsi. It might be possible to construct an argument that the actions of the shooters demonstrated an intention to shoot at all four men who were outside the premises. On the other hand it appears from the evidence that Homsi and Said had only just arrived and were about to leave again so their presence could not have been expected. Even Douar was a visitor. Any common purpose would have had to spring up immediately prior to the shooting. Bearing in mind the positive evidence of MD that he was the only person being shot at, I do not believe the evidence supports a finding beyond a reasonable doubt that the shooters shot at Douar, Said or Homsi. The evidence of Douar in his statement to the contrary has to be significantly discounted because of the changes to his version, his attempts to utilise the court processes to obtain a reduction in his own sentence and the seven month delay in making the statement.

52 In order to prove its case the Crown relies also on the fact the men were standing close together when the shooting occurred so that it can be said they were all shot at. However, Homsi gave evidence he and Said were about to leave and he had walked to the driver’s door of his car and he had the door open. The only other evidence came from Maria Raso who was visiting at a house across the street and the most she could say was that the shooting was “in the direction” of the four men. I do not believe the evidence establishes they were so close together that it can be said the shots were fired at all of them.

53 I would allow this ground of appeal and quash the convictions on counts 4, 6 and 8 and enter verdicts of acquittal on each of those counts.

Ground of Appeal 6

“The verdict on the 9th count was unsafe and unreasonable.”

54 The evidence I have summarised and accepted clearly indicates the appellant fired a number of shots. Clearly some of those shots did not strike the victim and they amounted to the offence charged.

55 There was also overwhelming evidence of a joint enterprise to fire shots in the air as the car approached and drove past the premises. The evidence of MD established shots were fired in the air both before and after the car passed No. 10 Mons Street.

56 The trial judge gave appropriate directions on the law of common purpose. A later ground of appeal focuses on the directions relating to a common purpose which might spontaneously arise when it was seen there were a number of people outside the premises. That common purpose was said to be to shoot at Douar, Said and Homsi. On the other hand there can be no doubt at all there was a pre-formed common purpose for guns to be discharged in a public place outside the victim’s home. All the evidence indicated a number of persons leaning out of the car with guns firing shots before reaching the home of MD and all continuing to fire shots driving past the home of MD. I would dismiss this ground of appeal.

Ground of Appeal 7

“The trial judge erred in her directions on intent.”

57 The complaint made is that the judge told the jury “Where a specific result is the obvious and inevitable consequence of a person’s act and where he deliberately does that act, you may readily conclude that he did that act with the intention of achieving that specific result.” It is not suggested this direction was wrong – see Parker v R [1962-1963] 111 CLR 610. The suggested error is that it was a dangerous direction in the circumstances of this case because it might lead the jury to believe they were being told it was legitimate to presume a person intends the natural and probable consequences of his act. However, the judge prefaced her remarks by observing “In some cases a person’s acts may themselves provide the most convincing evidence of his intention.” There is no suggestion of any “presumption” and no danger the jury could so interpret the directions.

58 The problem with speaking of a presumption of intention is that it transfers the burden of rebutting the presumption on to the accused – see R v Stokes and Difford (1990) 51 A Crim R 25. That did not occur in this case. The trial judge gave full and clear directions as to the onus and burden of proof. It is suggested by the appellant the judge should have given a direction relating to circumstantial evidence. In Knight v The Queen (1992) 175 CLR 495 at 502 in the joint judgment of Mason CJ, Dawson and Toohey JJ it was said as to this:

“However, it is a direction which is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt …”

59 I do not believe there was any error of law in the directions given and I would dismiss this ground of appeal.

Ground of Appeal 8

“The trial judge erred in her directions in respect to the criminal enterprise.”

60 This ground relates to the convictions on count 4, 6 and 8. Since in my view those convictions should not stand it is not necessary to consider this ground further.

Ground of Appeal 9

“The trial judge erred in permitting the Crown cross-examination of the witness Douar.”

61 In my view it was necessary for the Crown to call Douar as a witness in this case. He was one of the four men on the footpath when the shooting began. Moreover, in his evidence given prior to the s38 application, he said “There was a car driving past and like it shot at us.” He said that the car was doing “50 ks”. He went on to say that he did not see the shooting but he heard it and that he then went to the ground. His evidence that “… it shot at us” is the only evidence which directly supports counts 4, 6 and 8. The only other witness to give some evidence in support about this was Mrs Raso who was a visitor to a house on the other side of the street and she said that the shooting was “towards where the boys were in the car” and at another point she said the guns were “facing where the boys were, on that direction, across the road from me.”

62 In Whitehorn v The Queen (1983) 152 CLR 657 at 674 Dawson J said:

“All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief.”

63 To the same effect was the observation of Heydon JA in R v Le (2002) 54 NSWLR 474 at page 486, paragraph 68, where he observed the witness “…was essential to the unfolding of the narrative underlying the Crown case.” In this case Douar was not only an eyewitness, he was the nominated victim in three of the charges on the indictment.

64 The leave granted to cross-examine Douar under s38 of the Evidence Act had the result that he admitted making a statement identifying the shooters on 2 December, 2004 which was some seven months after the shooting and in circumstances where he had originally told the police he didn’t see who did the shooting. It was also clear that he used that statement which he had made on 2 December, 2004 in order to gain for himself a discount in respect of sentencing he was facing for an unrelated matter. He then resiled from that statement and gave evidence that it was wrong and he could not identify the shooters. Because of that evidence, the judge cautioned the jury about Douar’s evidence and it is because I regard his evidence as unsatisfactory that I do not believe that, unsupported as it is, it can be relied upon to prove beyond reasonable doubt the guilt of the accused in respect of counts 4, 6 and 8.

65 The complaint made on this appeal is that it introduced material into the trial which unfairly prejudiced the appellant. In Adam v The Queen (2001) 207 CLR 96 at 109 in a joint judgment of Gleeson CJ, McHugh, Kirby and Hayne JJ it was pointed out in respect of s60 of the Evidence Act, 1995 (NSW):

“… the difference being that, by s60 of the Act, the prior statements would be admitted as evidence of the truth of their contents. But that difference brought about by s60 was one of the significant alternations in the rules of evidence that the Act was intended to effect. No longer were tribunals of fact to be asked to treat evidence of prior inconsistent statements as evidence that showed no more than that the witness may not be reliable. The prior inconsistent statements were to be taken as evidence of their truth.”

66 In a criminal trial where an application to cross-examine in relation to a prior inconsistent statement is made under s38, it is necessary to have regard to:

“ s38(6)(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party .”

It is also necessary to consider s192 which allows the court to grant leave to cross-examine “on such terms as the court thinks fit” and the court should consider:

“s192(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b) the extent to which to do so would be unfair to a party or to a witness; and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d) the nature of the proceeding; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.”

In addition it is necessary to consider s135 which allows the court to “refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

The Court should also consider s137 which states:

“ In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

The Court may also limit the use to be made of the evidence under s136.

67 The appellant referred to R v Esposito (1998) 45 NSWLR 442 where at 456 Woods CJ at CL said:

“… whether or not the contents of any prior statement can be placed before the jury, by leave, either through cross-examination of that person, or through another witness (Evidence Act, s38 and s108), will depend upon the particular circumstances of the case, and upon the use to which the evidence is sought to be put.

In any such instance, for the reasons mentioned by Adams J, careful consideration will need to be given to the contemporaneity and reliability of any prior statement. For example, leave may well be refused in a case where the witness has given a series of conflicting statements; or in a case where the statement sought to be relief upon by the prosecution was made well distant in time from the events described; or where it is only partially consistent with his evidence at trial. Neither s38, nor s108, is in my view available to the Crown to introduce potentially unreliable evidence to bolster the “credibility” of a prosecution witness.”

68 The case of Esposito was one where the Crown sought to lead evidence from a witness of his own prior consistent statements made to the police and to the manager of a hostel for homeless people. This witness had been a co-accused in the charge of murder but the Crown had accepted a plea of guilty to robbery. It was submitted it was admissible under s66 of the Evidence Act and the prosecution said it was relevant to show he had volunteered information to the police believing he had nothing to fear. Wood CJ at CL also said at pages 455-456:

“I observe, in passing, that the proper course for the prosecution in a case such as the present is to adduce the evidence of the witness directly through him, that is, so far as his recollection extends; and not to seek to prove some earlier account that he may have given, as hearsay through other witnesses”.

He went on to observe that whether he would be allowed to refresh his memory would be another question. The question in the instant case is quite a different question to the one in Esposito where the evidence was sought to be adduced solely for the purpose of bolstering the witness’s evidence by reference to his own earlier statements.

69 A helpful analysis of the development of the law in respect of s38 of the Evidence Act, 1995 is contained in the judgment of Johnson J in the case of R(Cth) v Petroulias (No. 29) [2007] NSWSC 1005. His Honour there points out that s38 has not been confined to the situation where a party calling a witness is confronted unexpectedly by unfavourable evidence (R v Parkes (2003) 147 A Crim R 450). His Honour went on to say:

“14. The interests of justice, the public interest and the administration of justice may be served by the testing of the evidence of a witness by way of a s38 examination: R v Le (2002) 54 NSWLR 474 at 487; R v Ronen [2004] NSWSC 1298. A grant of leave may permit a truer picture of the situation to be presented to the jury than would have been the case had the Crown been refused leave to cross-examine. This is the very purpose underlying s38: R v Parkes at 464 [81], [83].”

70 In the case of Adam v R supra at page 104-105 in the joint judgment of Gleeson CJ, McHugh, Kirby and Hayne JJ the question arose as to whether a statement should have been admitted by virtue of s38 of the Evidence Act. The Court considered Blewitt v The Queen (1988) 62 ALJR 503 where it was said:

“ It is established that the calling of a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible to prove facts against the accused is improper and might well give rise to a miscarriage of justice.”

71 It was pointed out that that was the situation at common law but under the Evidence Act if a prior inconsistent statement were admitted it was admissible to prove facts against an accused if tendered as evidence of the truth of its contents. It was pointed out that if admitted only to prove that the witness was not telling the truth then Blewitt’s Case would still be relevant.

72 It was further pointed out that the first question as to admissibility was to determine if the statement was relevant in the sense of whether it “… could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” see at page 105, paragraph 21. The Court went on to say:

“ Contrary to the appellant’s contention, deciding whether the evidence was relevant neither required nor permitted the trial judge to make some assessment of whether the jury would or might accept it. Section 55(1), with its reference to: if it [the evidence in question] were accepted”, requires that relevance be determined on the assumption that the tribunal of fact accepts the evidence. Relevance is demonstrated if, were the evidence to be accepted, it could rationally affect the assessment of the probability of the existence of a fact in issue .”

73 The Court went on to acknowledge that the prior inconsistent statement might also have a bearing on the question of whether the witness was to be believed but said the evidence in that case related to more than that question.

74 In this case the trial judge stated she had come to the view that leave should be granted and said that rather than delay the jury she would not give reasons at that time but would “make it clear coming to that decision I have had regard to s192 and indeed s127”. It is clear her Honour intended to refer to s137 which she had referred to earlier in discussions with counsel. A mistake appears to have arisen because the Crown Prosecutor had mistakenly referred to it as s127. During the course of the discussions her Honour was referred to R v Adam in the judgment of the NSW Court of Criminal Appeal and she was also referred to R v Esposito (1998) 105 A Crim R 27. Unfortunately her Honour’s reasons for allowing cross-examination were either not given or if they were, they have not been transcribed.

75 It appears that her Honour did advert to ss135 to 137 of the Evidence Act because she said she had done so and “in particular”, s137. She also subsequently said she had to have regard to s192 of the Evidence Act. I believe it might be safely concluded that her Honour has properly exercised a discretion under those sections. That does not mean this Court cannot review the matter to determine whether the trial miscarried because the evidence should not have been admitted.

76 In my view the evidence was properly admitted. It was in the interests of justice that the whole story in relation to the witness Douar be made available to the jury. In one sense it redounded to the appellant’s advantage in that it demonstrated the unreliability of his evidence about being fired at. The objection to his evidence is based on the possible prejudice from his statement identifying the three accused as the shooters which became evidence in the case by virtue of s60 of the Evidence Act. It is that prejudice which needs to be weighed in the question of considering whether it was unfair prejudice which outweighed its probative value. Had the course which her Honour followed not been taken, the jury would have been left with only part of the story relating to Douar’s involvement in this case. It simply became a matter for her Honour to give appropriate directions to the jury about the evidence. In my view the probative value was not outweighed by unfair prejudice and juries can be relied upon to make appropriate judgments about such matters. In this case they were obviously not prepared to rely on Douar’s statement, even supported by MD’s evidence identifying the two co-accused.

77 In assessing the question of unfair prejudice outweighing probative value, it is important to bear in mind all evidence is prejudicial and the focus in relation to the inquiry under s137 is on “unfair” prejudice. In looking at the question of probative value it was said in R v Mundine [2008] NSWCCA 55 in the judgment of Simpson J in paragraph 33:

“ What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact – or the contribution it might, if accepted , make to that resolution. Apart from anything else, to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete.”

78 In my own independent assessment of the material and the relevant discretions to admit or exclude it, I believe it was appropriate for leave to be granted to cross-examine the witness Douar. The evidence was relevant for the jury to assess whether the account in the statement was true as well as the issue of the credibility of the witness. I believe the evidence could not be excluded under s192(2) of the Evidence Act. In particular it was not unfair because the witness was available to be tested by cross-examination – see Adam v R (supra) at 107 [30]. The evidence may have been prejudicial but it was not unfairly so and it should not have been rejected under ss135, 136 or 137 of the Evidence Act.

79 Accordingly, I would dismiss this ground of appeal.

Ground of Appeal 10

“The trial judge failed to direct or sum up properly on Douar’s evidence.”

80 The complaint is made that the trial judge’s direction left the statement of Douar as evidence in the case. That direction is in accord with the decision of R v Adam supra and which I have discussed above. A complaint is further made that the trial judge failed to identify the limited opportunity Douar had to identify the shooters. The trial judge did give extensive directions on identification and drew attention to relevant matters such as the opportunity to observe the speed of the car, the light and how well the person was known to the witness. The trial judge specifically states as to his evidence “That is evidence of identification just as MD’s evidence is evidence of identification and you must exercise the same degree of caution and carefulness in respect of that evidence if you accept it because of the reasons that I have already identified.” The trial judge went further and said to the jury that as to Douar’s evidence that they might accept one of his versions or the other or “… just reject Mr Mohammed Douar’s evidence completely, putting it to one side because you cannot decide what it is you should accept.” The trial judge in the summing up drew attention to the history of Mr Douar’s statements and evidence in the case and said to the jury “You must therefore exercise caution in determining whether to accept his evidence or any part of it and the weight you give to such part of the evidence that you may accept.” In my view the directions given by her Honour were adequate to alert the jury to the care they should exercise in respect of Douar’s evidence and I would dismiss this ground of appeal.

The Sentence Appeal

81 There is before the Court an application for leave to appeal against the severity of the sentence imposed in this case. With the quashing of the convictions and sentences in respect of counts 4, 6 and 8 the following sentences are involved:

1. On count 9 of firing a firearm in a public place contrary to s93G(1)(b) Crimes Act , 1900 four years fixed term from 27 July, 2005 to expire on 26 July, 2009. The maximum penalty is ten years.

2. On count 2 of discharging a firearm with intent to do grievous bodily harm in company contrary to s33A(1) of the Crimes Act , 1900 a total sentence of 12 years made up of a non-parole period of eight years from 27 July, 2006 and a balance of term of four years. The maximum penalty is 20 years.

82 A number of specific matters have been raised by the applicant. They are:

1. the sentence was unduly harsh;
2. the sentencing judge breached the rule in de Simoni ;
3. the sentencing judge erred in her assessment of criminality involved;
4. the sentencing judge erred in failing to make any or specific allowance to the principle of totality;
5. the sentencing judge erred in respect to subjective matters.

83 The argument is advanced firstly that the sentence was unduly harsh. Counsel has discovered only three cases since October, 2000 where an offender has been sentenced for an offence under s33A(2) where the highest sentence was seven years with a five year non-parole period. His research as to sentences under s33 which carries a maximum penalty of 25 years and relates to an offence of malicious wounding with intent, showed sentences ranged from two to 16 years with non-parole periods of 12 months to eight years.

84 It must be said that three cases do not establish a tariff. The nature of offences of this kind can vary significantly and each case should be determined on its own facts. Certainly a head sentence of 12 years where the maximum sentence available is 20 years cannot be said to be anywhere near approaching the maximum penalty available. The offences we are dealing with arise because of an on-going dispute between the Razzak family and the Darwiche family. In the report of the psychologist, Mr Diment, it is reported that arising from this dispute an uncle and cousin of the applicant have been killed and a brother shot. The applicant’s own prior conviction for contempt arose in a case arising from this dispute. The facts of the case involving at least three men driving down a suburban street firing handguns on a Saturday afternoon amount to an act of urban terrorism such as is rarely seen in our Courts. In my view it is the sort of act which should be denounced in the strongest terms because of the need for general deterrence.

85 There are at the end of the day convictions for two offences and the offence of discharging a firearm in a public place in the same circumstances must also give rise to a sentence which denounces that offence. There were 22 spent shells recovered from the scene by police and a further one brought to the police station. There were people going about their normal business in their front gardens and there was evidence that children were playing outside No. 10 or nearby. I have earlier noted damage to a motor vehicle and the house next door from bullets. That offence should also attract an additional penalty. In my view leaving aside the other considerations it cannot be said that a total sentence of 13 years with a non-parole period of nine years dating from 27 July, 2005 is excessive.

86 It is also asserted the sentencing judge in fact sentenced for a more serious offence contrary to principles laid down in R v de Simoni (1981) 147 CLR 383. It is certainly true the judge mentioned the fact that the victim was shot in the buttock. However, her Honour correctly stated the offence was one under s33A(2) with a maximum penalty of 20 years. There is no reason to believe she lost sight of that fact when imposing sentences. In setting out the facts she was merely outlining what had occurred and the fact that she mentioned a wounding must be understood in that context. It is true that in structuring the sentences she did, the sentence imposed on count 2 was in fact greater than the sentence imposed on counts 4, 6 and 8. However, the reason for that appears to be because she did not fix a balance of term on those sentences and merely imposed a fixed term. The fixed term on counts 4 and 8 was eight years from 27 July, 2006 which is exactly the term of the non-parole period on count 2. She obviously did not consider it necessary to impose a balance of term on those offences because a parole period had been set in relation to count 2. If the sentence on count 2 were to be reduced to the same sentence, then the applicant would end up with a fixed term of imprisonment and be released without any form of supervision at all after nine years. That is highly undesirable.

87 The mandate of this Court under the Criminal Appeal Act, 1912 s6(3) is to reduce a sentence where “… it is of opinion that some other sentence … is warranted in law and should have been passed …”

88 I do not believe there was any error by the sentencing judge in assessing the criminality involved in this case. The Crown case clearly was that the victim was the intended target of the shooting and it is also abundantly apparent that all of the persons in the car knew that guns were to be discharged in the street.

89 The sentence is also criticised because the judge failed to take into account the principles of totality. On the other hand the judge specifically said she had taken into account the principle of totality and it appears to me she certainly did so because of the fact she only accumulated one year on to the major sentence. In my view a greater accumulation may have been justified.

90 The last criticism raised is that the subjective circumstances were not taken into account adequately. The sentencing judge did know the applicant was only 20 at the time of the offences and that he had been in continuous custody since his arrest on 26 July, 2004. She was careful to backdate the sentences to give him credit for all the time he had spent in pre-sentence custody and she gave him the benefit of some concurrency in respect of a six month sentence for drive while disqualified. The judge noted the psychologist’s report and noted the evidence of the applicant’s mother who believed he had matured since the time of the offences. The psychologist had set out in his report the background of the appellant who was born in Australia to a Lebanese migrant family. His parents separated when he was 15 and it appears the applicant first began to misbehave at about that time. It was properly noted that he had a conviction on 24 May, 2001 in Lidcombe Children’s Court for possessing a loaded firearm in a public place and that he had been dealt with and sentenced for offences of drive while disqualified and contempt of court. I believe the subjective circumstances were adequately considered by the sentencing judge.

91 The quashing of the convictions and sentences in respect of three of the charges does raise a question as to whether or not on the principle of totality there should be a reduction in the sentence. In my view it should not because the sentences quashed were concurrent with the non-parole period and two of them are the same length as the non-parole period. Nor do I believe that any less severe penalty is warranted in law in respect of two such serious offences as are disclosed on the facts of the two convictions which are confirmed.

92 Accordingly, the orders I would propose are that:

1. the appeal against conviction in respect of counts 4, 6 and 8 of the indictment be allowed and the convictions and sentences be quashed and verdicts of acquittal entered;
2. the appeal against conviction in respect of counts 2 and 9 be dismissed and the convictions confirmed;
3. grant leave to appeal against the sentences on counts 2 and 9 but dismiss the appeal.

93 HALL J: I agree with the reasons and orders proposed by Blanch J. I also concur with the observations made by Allsop P in his judgment.