Saliba v The King

[2023] NSWCCA 298

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Saliba v R [2023] NSWCCA 298

Hearing dates:

10 November 2023

Date of orders:

29 November 2023

Decision date:

29 November 2023

Before:

Ward P; Walton J; Fagan J

Decision:

1. Grant leave to appeal.

2. Appeal dismissed.

Catchwords:

CRIMES – appeals – appeal against sentence – where applicant pleaded guilty to possession of a pistol and two counts involving discharge of the weapon – where sentencing judge misapprehended agreed facts as to which count involved the infliction of second gunshot wound – whether despite factual error no lesser aggregate sentence warranted for the three counts

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Firearms Act 1996 (NSW)

Category:

Principal judgment

Parties:

Rex (Respondent)
Adam Saliba (Applicant)

Representation:

Counsel:
E Wilkins SC (Respondent)
D Barrow SC (Applicant)

Solicitors:
Solicitor for Director of Public Prosecutions (Respondent)
Sans Law (Applicant)

File Number(s):

2020/194217

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

2 September 2022

Before:

Judge NL Williams

File Number(s):

2020/194217

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to possession of a prohibited pistol (.22 calibre Ruger) (count 1), recklessly causing grievous bodily harm (count 2), and discharging a firearm in a manner likely to injure (count 3). The applicant was a member of the same criminal organisation as his victim. The applicant feared the victim intended to shoot him after receiving threats and he acquired the pistol to defend himself. The next day the applicant sent more threatening messages and then attended at the applicant’s address. When the victim walked rapidly towards the applicant’s home, the applicant approached him carrying the pistol (count 1) and fired twice in rapid succession (count 2). The first shot occasioned a gunshot wound to the victim’s jaw and the second caused a wound to his chest (anterior thoracic) and left a projectile in the soft tissues of his back. The applicant then discharged a third shot in the victim’s direction, which did not strike him (count 3).

Allowing a 10% discount, her Honour imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 5 years and 6 months. The sole ground of appeal was that the learned sentencing judge erred in sentencing for counts 2 and 3 on the basis that each involved a discharge of the pistol that had caused a gunshot wound.

The Court held (Ward P, Walton and Fagan JJ) granting leave to appeal against sentence and dismissing the appeal:

1. 1. The sentencing judge’s error of fact involved an understatement of the seriousness of count 2 by attributing to it only one injury (to the jaw) whereas there was a second injury (to the anterior thoracic) and overstating the seriousness of count 3 by attributing to it the second gunshot injury whereas the projectile discharged from the weapon in that count had not struck the victim (at [23] and [24]).

2. 2. No lesser sentence was warranted. The factual error did not involve a material misconception concerning the totality of the gravity of offending, it merely called for a reallocation of seriousness from one count to another (at [41] and [42]).

JUDGMENT

1. THE COURT: The applicant seeks leave to appeal against an aggregate term of imprisonment to which he was sentenced on 2 September 2022 in the District Court, by her Honour Judge N Williams. The applicant had pleaded guilty to the following charges, all three of which arose out of a single episode on 15 June 2020. Her Honour’s indicative sentences were as noted in the following summary:

Count 1 – Possess a pistol, a self-loading .22 calibre Ruger, not being authorised by licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW) (maximum penalty 14 years imprisonment, standard non-parole period 4 years) – indicative 8 years and 1 month imprisonment with a non-parole period of 5 years.

Count 2 – Recklessly cause grievous bodily harm to Samer Marcus, contrary to s 35(2) of the Crimes Act 1900 (NSW) (maximum penalty 10 years imprisonment, standard non-parole period 4 years) – 6 years and 3 months imprisonment with a non-parole period of 3 years and 10 months.

Count 3 – Discharge a firearm in a manner likely to injure Samer Marcus with disregard for his safety, contrary to s 93G(1) of the Crimes Act (maximum penalty 10 years imprisonment) – 6 years and 9 months imprisonment with a non-parole period of 4 years and 2 months

2. Her Honour also dealt with an offence on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), namely, acquire ammunition when subject to a firearms prohibition order, contrary to s 74(3) of the Firearms Act (maximum penalty 5 years imprisonment). The quantity was 34 rounds of .22 calibre, suitable for the weapon used in counts 2 and 3. The judge’s indicative sentence for that matter was 3 months imprisonment. Each of the indicative sentences was arrived at after allowing a 10% discount for pleas of guilty. The aggregate sentence was 9 years imprisonment with a non-parole period of 5 years and 6 months.

3. The applicant had been sentenced by Judge Bennett SC on 20 November 2018 to a term of imprisonment that was to expire on 19 May 2021, in respect of which he was released to parole on 19 February 2019. The applicant was therefore on parole when he committed the offences now under consideration. He was arrested on 1 July 2020, 16 days after the shooting. His parole was then revoked and his custody from the date of arrest through to 19 May 2021 was referable to the sentence earlier imposed by Judge Bennett SC, as well as to his remand and sentence in relation to the matters that are the subject of this appeal. In those circumstances the aggregate sentence that is now appealed against was fixed to commence on 1 October 2020.

4. The sole ground of appeal is as follows:

The learned sentencing judge erred regarding the factual basis underpinning Count 3 and the error occasioned a miscarriage of justice.

Facts

5. There was an agreed statement of facts before the sentencing judge as well as an affidavit from the applicant in which he deposed to the circumstances of the offending. The transcript of an electronically recorded interview conducted by investigating police on the day of his arrest was also tendered. The applicant was aged 33 years at the time of the offending. He had been a member of a Middle Eastern organised criminal group since his late teens. He had known the victim, Samer Marcus, for about 20 years and Marcus had been a member of the same criminal organisation. To the applicant’s observation and from information given to him by others, Marcus was using methyl amphetamine and cocaine heavily from early June 2020. He became paranoid and believed that friends were “turning” on him.

6. From about 9 June 2020 the applicant received messages from mutual friends that Marcus’ paranoid animosity was directed towards him. The applicant was aware that Marcus had been involved in previous incidents of violence involving firearms. He believed that Marcus had the capacity and the willingness to obtain firearms and use them. On 13 June 2020 the applicant received a call in which Marcus alleged that the applicant had betrayed him and threatened to harm him. At about that time the applicant was informed by others that Marcus was attempting to obtain a firearm. He believed that that could be true. The applicant deposed to the following:

On 14 June 2020 I decided to arm myself. I procured a firearm and ammunition. I did it for the sole reason as having it to protect myself from Samer Marcus. I did not want this confrontation and hoped that it would not occur.

7. The firearm was recovered by police after the shooting. It was a .22 Ruger self-loading pistol with no serial number. The weapon was fitted with a silencer and, when recovered, was accompanied by a magazine and 34 rounds of compatible .22 calibre ammunition.

8. Commencing on the evening of 14 June 2020 and continuing through the morning of 15 June, Marcus sent to the applicant a stream of expletive laden WhatsApp messages challenging the applicant to meet with Marcus and face some unspecified violence. The applicant believed that what was being threatened was a shooting. In the same period Marcus also sent messages to mutual acquaintances enquiring as to the applicant’s whereabouts. The acquaintances informed the applicant of this and on the morning of 15 June 2021 one of them told the applicant that Marcus “was in an extreme rage and that he was potentially armed with a weapon”.

9. At about 12:30 pm on 15 June 2020 Marcus arrived in his vehicle at the applicant’s address, 31 Middlethorpe Street, Bonnyrigg Heights. Marcus parked across the street outside No 42 and walked quickly from his vehicle towards the applicant’s house. The statement of agreed facts records the ensuing events in the following terms:

7 The offender walked out the front of the premises and raised a .22 calibre Ruger pistol (Count 1 – Possess a pistol not being authorised to do so, pursuant to s. 7(1) Firearms Act 1996) and fired on two to three occasions in quick succession. The first shot hit the victim in the jaw, causing him grievous bodily harm, a broken jaw (Count 2 – Recklessly cause grievous bodily harm pursuant to s.35(2) Crimes Act 1900). At this point the victim turned away and the second shot hit the victim in the back.

10. In his affidavit the applicant described his firing of the two shots that wounded Marcus in different terms. The Crown did not require him for cross-examination. He deposed as follows:

28   ... As he got out from the vehicle he started to rush toward my house.

29   I did not see a firearm but I believed that he had one. He put his hand in his jumper as he advanced towards my house.

30   I picked up the [.22 Ruger pistol] and left the house from the open garage. The firearm was loaded with a full clip.

31   I saw him, raised my firearm, and fired at him twice. I was hoping to stop his progress as I believed that if I had hesitated, he would pull his gun out and kill me.

32   The series of events happen very fast. After I fired the first two shots, he stopped his advance, but he did not retreat. I could see on his face that he was even more angry, however, I did not see a firearm.

11. Paragraph 8 of the agreed facts recites the observations of a witness who was visiting a neighbouring house. The facts agreed in this paragraph may be paraphrased as follows:

The witness did not see the shots being fired as described in par 7 but heard “yelling in a Lebanese accent” followed by “high-pitched cracks”, no doubt being the shots referred to in par 7, although the witness did not state how many she heard.

After hearing the “cracks” the witness looked out through a window and saw Marcus standing in the middle of the street outside No 42 and the applicant standing 3-4 metres away from him, yelling, waving his arms towards Marcus and holding a pistol in his right hand.

12. Paragraphs 9 and 10 of the agreed facts are as follows:

9 The offender, pistol in hand, walked towards the victim, who walked backwards. The offender then shot from the pistol towards the victim (Count 3-Fire a firearm in a manner likely to injure pursuant to s.93G(1)(c) Crimes Act 1900).

10   The offender and [a third male, who was in the street but apparently unconnected with the incident] then left and went back to 31 Middlehope Street. The victim walked to his ute and drove away.

13. The applicant described the sequence of events after the first two shots had been fired in the following paragraph of his affidavit:

33   I was yelling at him to go away and trying to scare him off. He did not seem to be moving away, but he was still facing me. I shot a third round in his direction, but not at him. He then left.

14. The reference to “two or three” discharges in par 7 of the agreed facts is uncertain. Paragraph 9 is also uncertain in that it does not state how many times the applicant “shot from the pistol towards the victim”. However, the unchallenged evidence of the applicant was that he discharged the weapon only three times: twice, initially, in quick succession, with the gun aimed at the victim, from which the victim suffered two bullet wounds; then once more with the gun aimed “in his direction, but not at him”.

15. That evidence was not only unchallenged but was consistent with objective circumstances recorded in the agreed facts. The victim suffered only two gunshot wounds and the projectile from a third discharge of the pistol made a hole in the fascia board of a house across the street, where a bullet fragment was located by crime scene examiners. Only two fired casings were found at the scene.

16. Investigating police identified that Marcus was the victim of the shooting but he refused to cooperate. He attended Liverpool Hospital on 18 June 2020. The fact that Marcus sustained only two gunshot wounds, one to his jaw and one to the “anterior thoracic”, appears from a summary of the hospital’s clinical notes incorporated in the statement of agreed facts. The thorax is the region of the body situated between the neck and the abdomen. In layman’s terms, the anterior thoracic is the front facing aspect of this region, comprising the major muscles of the chest overlying the sternum and the anterior portions of the ribs.

17. There was an inherent contradiction in the statement of agreed facts. Paragraph 7 recorded that “the second shot hit the victim in the back”, whereas the agreed clinical findings were of wounds only to the jaw and the chest (“anterior thoracic”). Confusion may have arisen from the fact that medical staff identified an “obvious projectile in soft tissues of back”. This did not mean that there was a penetrating wound to the back through which the bullet had entered – there is no medical observation of such a wound – but is consistent with the bullet having passed through the thorax from front to back and lodged in soft tissue of the posterior thorax, without leaving the body.

18. The summary of Hospital notes incorporated in the statement of agreed facts is as follows, with the findings that relate to the anterior thoracic wound highlighted. All other findings relate to the gunshot wound to the jaw:

a. 1 wound to anterior thoracic + another wound to face

b. Obvious projectile in soft tissues of back

c. Circular wound to lower left lip adjacent fracture

d. Swollen cheek and submandibular region

e. Comminated [sic] contaminated left mandible fracture

f. Multiple radiodensities noted surrounding the fracture, within the left submental space ... may represent tooth fragments, metallic dental work, or other foreign body.

g. Remainder of bullet retrieved from submandibular gland.

At item e, the word “Comminated” should read “Comminuted”, meaning that the fracture involved multiple breakages of the bone. At item f, the left submental space is an area beneath the chin.

19. About 20 minutes after the shooting the applicant and an associate buried the pistol, with its silencer and magazine and 34 rounds of ammunition, in a nearby park. Police retrieved the items about two hours later. They had received information from a witness who observed suspicious activity in the park.

Clarification of facts during sentence proceedings

20. The judge informed counsel at the sentencing hearing that she perceived “a tension” between the statement of agreed facts, the applicant’s affidavit and the Crown’s particularisation of the charges. There certainly was a tension. After discussion it was clarified that the Crown intended count 2 to comprehend all bodily harm occasioned to Marcus by the firing of the pistol.

21. Having regard to the written material submitted to the judge, the clarification meant that the agreed particulars of the respective counts were as follows:

Count 2 – two gunshots fired in quick succession at the victim, causing all physical damage described in the hospital notes, namely, flesh wounds to the face, damage to the teeth, a comminuted fracture of the mandible, lodgement of a projectile under the jawbone, a wound to the chest (“anterior thoracic”) and lodgement of the projectile that caused the chest wound in the soft tissue of the back.

Count 3 – one round fired in the direction of the victim, not striking him or causing any injury.

Impugned passages of the Remarks on Sentence

22. The learned judge delivered her remarks and passed sentence nearly 5 months after the sentence hearing. In an early part of her remarks the judge quoted verbatim the statement of agreed facts, including the hospital’s summary of the victim’s injuries. Later the learned judge stated her understanding of the particulars of counts 2 and 3 in the following passages (labelled for ease of reference):

A   With respect to count 2 … I note that the victim had attended the offender's residence in suburban Sydney after making a number of violent threats to him. The offender came outside of his residence with a pistol and fired two or three shots in quick succession. The first shot hit the victim in the jaw causing him a broken jaw and it is that injury which informs the element of grievous bodily harm. Also, I note that the victim eschewed hospital treatment for a number of days and when he did eventually seek it, he discharged himself. I note the injuries that I have set out above in the agreed facts.

B   The offender and the victim were standing in the middle of the street and the offender was standing next to an unknown third male. The first shot was one of a number of shots discharged and was fired at a relatively close distance, perhaps as close as 3 or 4 metres from the victim. I note that this offence occurred in broad daylight in a residential area of Sydney's western suburbs with other people in the near vicinity. ... In all of the circumstances I found that this offence sits just under the mid-range of objective seriousness.

C   After the discharge of the pistol which informed count 2, the offender was still on the street at close proximity to the victim. The offender was facing the victim who walked backwards away from the offender. The offender advanced towards the victim with the pistol in his hand. The offender shot the victim again even though he was already wounded. I note that the agreed facts state that the victim on medical examination was found to have an obvious projectile in the soft tissue of his back. I assume that that projectile was as a result of the second shot connecting with the victim.

D   Once again I note there were a number of shots fired at the victim by the offender who has told police in his ERISP that every shot was aimed at the victim. I note that the victim had been injured and was walking away. I note that this took place in a suburban area where other people were nearby and put at risk. I note that there was an injury connected to this discharge. In all of the circumstances, I am of the view that this offence sits just slightly above the midrange of offending. (Emphasis added).

23. At paragraphs A and B the learned judge did not recognise a limiting parameter of the seriousness of count 2, namely, that the applicant was to be sentenced on the basis that he fired precisely two shots in quick succession at the victim, not “two or three” or “a number of shots”. On the other hand, her Honour understated the seriousness of count 2 in that she said the only grievous harm occasioned was the gunshot wound to the jaw whereas it was agreed by the parties that both of the shots fired in quick succession had struck the victim, the second shot having penetrated his anterior thoracic and deposited a projectile in the soft tissue of the back.

24. In paragraphs C and D, her Honour mistakenly treated count 3 as involving a further wounding of the victim, after the applicant had fired the two shots comprehended in count 2. Thus she treated count 3 as more serious than in fact it was, by reason of her Honour thinking there was “an injury connected to this discharge”.

23. It follows that the applicant should be granted leave to appeal and that the single ground advanced on his behalf has been made good. It remains to determine whether, upon this Court proceeding to consider re-sentence, any lesser aggregate sentence is warranted in law. That requires attention to the subjective case presented in the District Court and it requires that account be taken of her Honour’s findings regarding the applicant’s insight, remorse, risk of reoffending and prospects of rehabilitation.

The applicant’s antecedents and subjective case

26. Material tendered in the sentence hearing and accepted by her Honour shows that the applicant was brought up in a stable family environment. He completed his education to year 11. The applicant was an average to below average student. Perhaps because of his lack of academic aptitude, his behaviour deteriorated into fighting at school, which led to suspensions. In late teens the applicant commenced using drugs and alcohol. He had periods of employment in unskilled capacities after leaving school but his delinquency deteriorated into crime and then imprisonment.

27. Her Honour correctly found that the applicant’s criminal record, which is summarised below, disentitled him from leniency. Taking into account the subjective material tendered, her Honour found that he displayed “some obvious insight” into his offending and “some remorse”. The judge referred to testimonials that were tendered on the applicant’s behalf and supportive evidence given by his mother and sisters. The applicant indicated a willingness to pursue employment. Her Honour said that the material presented “goes some way to lift the otherwise gloomy countenance of rehabilitation”. She found “qualified prospects of rehabilitation”.

28. On 29 May 2006, at the age of 19 years, the applicant committed an offence of shooting a person with intent to inflict grievous bodily harm. He was sentenced to imprisonment for 6 years with a non-parole period of 3 years. The applicant was released to parole on 9 August 2011 after having served 5 years and 2 months.

29. A little over 12 months after his release, on 23 August 2012, the applicant committed another wounding with intent to cause grievous bodily harm. He was then aged 26 years. In company with two other men the applicant attacked a single victim in a shopping centre at St John’s Park. One of the co-offenders swung a weightlifting belt at the victim, striking his head repeatedly with the buckle. The applicant and the third offender joined in the attack, punching, kicking and throwing 2 kg tubs of product, taken from the shelves of a shop. The assault continued for about two minutes. The victim was left on the floor of the premises with a large amount of blood issuing from his head and face. At Fairfield Hospital he was found to have sustained a left orbital fracture, a left nasal bone fracture, a laceration of the left eyelid, the loss of one tooth and breakage of another tooth. The victim did not cooperate with investigating police and they did not, at the time, identify the applicant as one of the attackers. Police learned of his involvement from conversations intercepted subsequently, in a separate investigation. The applicant was not charged with the offence of 23 August 2012 until September 2016, at which time he was serving a sentence for offences committed later in 2012, as now to be described.

30. On 21 October 2012 the applicant committed the offence of affray. Then on 9 November 2012 in company with three other men he attacked the proprietor of a barbershop in Fairfield. The applicant wielded a baseball bat in what the sentencing judge described as “a brief but frenzied attack”. He swung the bat with both hands from over his shoulder, striking the victim’s head. The victim was concussed and was later admitted to hospital with a score on the Glasgow Coma Scale that deteriorated to 7 out of 15. The attack was in retribution for an altercation between the victim and an associate of the applicant that had taken place in the shop some hours earlier.

31. On 22 December 2012 the applicant committed an assault occasioning actual bodily harm, for which he was arrested on 27 December 2012. For the affray committed on 21 October 2012 and the assault of 22 December, the applicant was imprisoned for a total of 15 months, commencing 27 December 2012 and expiring on 26 March 2014. While in custody he was charged with three offences arising out of the attack in the Fairfield barbershop on 9 November 2012, namely, affray, assault occasioning actual bodily harm in company and wound with intent to cause grievous bodily harm. After a trial by judge alone, Judge Michael Williams SC found the applicant guilty of those offences and sentenced him to an aggregate term of 4 years and 6 months commencing on 27 March 2014, with a non-parole period of 2 years and 6 months. The applicant was released to parole on 8 November 2016, having served consecutive sentences of imprisonment totalling nearly 4 years.

32. After his release to parole on 8 November 2016 the applicant was on bail with respect to the charge of wound with intent to cause grievous bodily harm that arose out of the incident at the St John’s Park shopping centre on 23 August 2012. As earlier mentioned, he was charged with that in September 2016 and he remained on bail in respect of the matter until he pleaded guilty and was sentenced for it by Judge Bennett SC on 20 November 2018. Judge Bennett SC took into account the applicant’s engagement in prosocial activities during his parole for the previous sentence, over the two years from November 2016 to November 2018. The judge was impressed by supportive evidence from the applicant’s fiancé. His Honour accepted the applicant’s claims that he had moved on from the influence of negative peer associations and from previously held attitudes that “condone the use of violence as a means of resolving conflict”. The learned judge concluded that “he has a low risk of reoffending”.

33. Those conclusions contributed to his Honour backdating the sentence he imposed by two years, so that that much of it was acquitted by a period in which the applicant had been at liberty, conditionally, serving out the parole in respect of his previous sentence. The sentence ordered by Judge Bennett SC was 4 years and 6 months imprisonment commencing on 20 November 2016, with a non-parole period of 2 years and 3 months. By reason of the backdating, the applicant was eligible for parole only 3 months after the sentence was passed. He was released to parole on 19 February 2019. The head sentence did not expire until 19 May 2021.

34. On the above history the learned sentencing judge in the present case was well justified in treating the applicant’s expressions of insight and remorse with reserve. Her Honour was justified in adopting a guarded approach to the prospects of the applicant being rehabilitated and with respect to the risk of him reoffending. The applicant has repeatedly committed acts of very serious violence. His family support and his professions of reform have been presented to sentencing judges on previous occasions. His actions have fallen short of the expectations and hopes that other sentencing judges have been persuaded to hold out for him.

35. The applicant’s statements to police in his recorded interview on 1 July 2020 reveal his continuing perception that imperatives arising from his association with criminals warrant violent, unlawful action on his part. His self-justifications demonstrate a disregard for the law. He does not recognise that the use of force to maintain the peace is the exclusive province of the police. The applicant’s claim to resort to violence on his own terms constitutes him a danger to the community.

36. Answers given in the police interview included the following:

… I believe it’s, uh, justified self defence, um. My life was in danger, my family’s lives were in danger, this threat was serious, it was a real threat and I guess that’s … what it was about.

I had, uh, like a credible intel that was, like, very obvious, blatant that he was coming to kill me. That’s it. So I shot him when he came, when I see him, he came to my house and I shot him outside my house.

… if I call the police, what have I been about my whole life? I’ve been about not doing that. If I do that my family’s in more danger than they ever be, that’s it, people will turn on me. Then I’ll be … in danger more. … I defended myself the way that I knew how and I know if I call the police it’s not gunna be one guy, it will be 50 guys coming for me and my family and that’s not, I’d rather be in gaol and they still in that house, they still safe. I don’t call the police, mate, it’s just the way it is, you know.

37. Nearly two years after that interview, in the applicant’s affidavit of 1 April 2022, he demonstrated his adherence to those views, for example in the following paragraph:

44   If I involved Police, it would have created bigger problems from me being labelled a “dog” or “snitch” and would have made me a bigger target from people living a life that I have tried to leave behind me.

38. On the affidavit sworn by the applicant in his sentence proceedings and from the text messages he received over several days prior to 15 June 2020, it is clear that there was ample information he could have provided to police upon which Samer Marcus could have been arrested for conveying menaces over a telecommunications carriage service and/or other offences. Police would have had no reason to doubt the seriousness of the threat, having regard to Marcus’ reputation for violence and the terms of his text messages and the erraticism of his behaviour. The applicant made a choice to meet the threat by continuing his pattern of violent action outside the law. The confrontation in Middlethorpe Street could have been averted by the applicant reporting the threat to police instead of arming himself in breach of the Firearms Act and then using the weapon. There is no mitigating self-defence element in the applicant’s conduct in these circumstances.

Re-sentence

39. We see no reason to depart from the learned sentencing judge’s finding of special circumstances or from her Honour’s adoption of a ratio of 62% for the non-parole period. In that respect her Honour’s decision took account of the more than usually onerous conditions of incarceration that had applied up to the date upon which sentence was passed, resulting from restrictions within the prisons during the Covid 19 public health crisis. Taking into account the above considerations and applying the 10% discount for the applicant’s pleas of guilty we would indicate sentences for the individual offences that are not significantly different from those nominated by the sentencing judge, except as to the relativity between the sentences for counts 2 and 3 – as follows:

Count 1: an indicative sentence of imprisonment for 8 years and 1 month with a non-parole period of 5 years.

Count 2: imprisonment for 7 years with a non-parole period of 4 years and 4 months

Count 3: imprisonment for 6 years with a non-parole period of 3 years and 8 months.

The offence on the s 166 certificate: 3 months’ imprisonment.

40. The longer indicative sentence for count 1 relative to the sentences for each of counts 2 and 3 is largely a function of the different maximum penalties applicable under the respective sections. The proportionality between the indicative sentences for counts 2 and 3 reflects the seriousness of two gunshots having been fired at the victim in count 2, both of which struck their target and which together caused grievous bodily harm of a significant order. Count 3 was relatively less serious because it involved a single shot that was fired in the direction of the victim but not aimed at him and which did not in fact cause him any additional wound. The discharge of the weapon on a public thoroughfare in a residential neighbourhood was dangerous and reprehensible but it warranted a lesser penalty than that for count 2.

41. The three offences on the indictment and the additional matter on the s 166 certificate constituted a single episode. We do not consider that the four offences warranted any lesser sentence than the aggregate of 9 years imprisonment with a non-parole period of 5 years and 6 months that her Honour imposed. The error of fact that has been substantiated under the single ground of appeal leads to a reallocation of gravity of offending from one count to another. The error did not involve any material misconception on the part of the judge concerning the overall seriousness of the combined offending, in terms of criminality, culpability, harm inflicted and danger created.

42. As it is the aggregate sentence that is under appeal, the appropriate course to give effect to the above conclusions is to dismiss the appeal. The differences between our indicative sentences and those of the learned judge are not of any consequence for the operative sentencing order, being the aggregate, which in our view is commensurate with all objective and subjective circumstances of the case. Accordingly, the orders of the Court are:

1. Grant leave to appeal.

2. Appeal dismissed.

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Decision last updated: 29 November 2023