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Court of Criminal Appeal 7 August 2000

R v Vulic

[2000] NSWCCA 295

Assault & violenceFirearms & weapons

Citation: Vulic v R [2000] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 7 August 2000
Judge(s): James J; Dowd J

Background

The appellant was convicted after a jury trial in the District Court on charges of attempting to discharge a loaded firearm at a solicitor with intent to cause grievous bodily harm, and possessing a loaded firearm in a public place. He had separately pleaded guilty to assault occasioning actual bodily harm arising from the same incident.

The background to the offences involved a long-running grievance. The victim had acted as a solicitor for the appellant's brother in family law proceedings, and the appellant blamed him for the failure to secure an interest in a disputed property. Over several years, the appellant harassed the victim, leading to an apprehended violence order being made in 1994. On 25 June 1998, the appellant armed himself with a semi-automatic rifle and petrol bombs and waited outside the victim's Blacktown office. When the victim approached, the appellant pointed the loaded rifle at him. The victim ran towards the appellant and grabbed the rifle, and a struggle followed during which the victim sustained lacerations. Bystanders intervened and the appellant was arrested. No shot was discharged.

In police interview and at trial, the appellant admitted he had intended to shoot the victim in the leg to cause pain. Psychiatric evidence before the District Court indicated the appellant was suffering from a paranoid disorder, with fixed persecutory beliefs about the victim that had not materially changed between the offence and sentencing.

  • Whether the twelve-year sentence imposed for the firearm offence under s 33 of the Crimes Act was excessive in all the circumstances
  • Whether the four-year sentence for possessing a loaded firearm in a public place under s 93G(1)(a) of the Crimes Act was excessive
  • Whether the sentence for assault occasioning actual bodily harm warranted interference on appeal

Decision

James J (with Dowd J agreeing) found the twelve-year sentence imposed for the s 33 offence to be excessive, having regard to the objective seriousness of the offence, the subjective circumstances of the appellant, and comparable sentencing decisions. Although the offending was plainly serious, the court concluded that a ten-year sentence with a seven-and-a-half-year non-parole period was appropriate.

On the firearm possession charge, the court also found the four-year fixed term to be excessive. A relevant consideration was that the appellant had owned the semi-automatic rifle for more than twenty years and had not previously committed any offence with it. The sentence was reduced to a fixed term of three years.

The sentence for assault occasioning actual bodily harm (a fixed term of two and a half years) was found to be within the proper exercise of the sentencing judge's discretion, and was not disturbed.

All sentences were ordered to commence from 25 June 1998, the date of the appellant's arrest and the beginning of his continuous custody.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Sentence on the s 33 offence (attempting to discharge a loaded firearm with intent to cause grievous bodily harm) quashed and replaced with imprisonment for ten years, commencing 25 June 1998, with a non-parole period of seven and a half years (earliest parole eligibility: 24 December 2005)
  • Sentence on the s 93G(1)(a) offence (possessing a loaded firearm in a public place) quashed and replaced with a fixed term of three years, commencing 25 June 1998
  • Sentence for the s 59 offence (assault occasioning actual bodily harm) confirmed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a twelve-year sentence for an attempted firearm discharge with intent to cause grievous bodily harm was excessive where no shot was fired, the appellant had limited prior criminal history, and relevant subjective factors were present, warranting reduction to ten years.
  • Long-term lawful possession of a firearm, without any prior offending involving it, can be a relevant mitigating factor in sentencing for a possession offence, even where the circumstances of the current offence are serious.
  • A sentence within a sentencing judge's discretion will not be disturbed on appeal simply because an appellate court might have imposed a different sentence; the assault occasioning actual bodily harm sentence was left undisturbed on this basis.
  • Psychiatric evidence of a paranoid disorder, while relevant to subjective circumstances, did not prevent the imposition of a very substantial sentence where the offending was premeditated and deliberate, involving preparation over several days.
  • Proportionality between the maximum available penalty and the sentence imposed was a material consideration in the court's reassessment of the s 33 sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 29, 33, 59, 93G(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases cited: No specific cases are identified in the provided text of the judgment.