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Court of Criminal Appeal 19 December 2003

Regina v Baquayee

[2003] NSWCCA 401

Assault & violence
CRIMINAL LAW CROWN APPEAL MANIFESTLY INADEQUATE SENTENCE TOTALITY DOUBLE JEOPARDY.

Citation: Regina v Baquayee [2003] NSWCCA 401
Court: NSW Court of Criminal Appeal
Date: 19 December 2003
Judge(s): Sully J, Barr J, Newman AJ

Background

The respondent was tried in the District Court at Campbelltown after being indicted on two counts of wounding with intent to murder, with alternative charges of malicious wounding with intent to cause grievous bodily harm. The jury acquitted him of the murder-intent charges but convicted him on both alternative counts. The offences arose from a confrontation at a cinema complex in Mount Druitt on 22 April 2002, during which the respondent produced a handgun and shot two brothers.

One victim, Ahmed Marnosh Zikria, suffered a bullet wound to the right thigh with bone fragments and small fractures. His brother Mustafa sustained far more severe injuries: the bullet struck his liver and lung, he spent over a month in hospital (two weeks of which in a coma), and he experienced life-threatening complications including a pulmonary embolus, epilepsy, and pneumonia. The sentencing judge found that the Zikria brothers, and particularly Ahmed, had been the aggressors in the initial dispute.

The Director of Public Prosecutions appealed against the sentences on the ground that they were manifestly inadequate, both when assessed individually and when considered as a whole.

  • Whether the individual sentences imposed by the District Court judge were manifestly inadequate for two offences of malicious wounding with intent to cause grievous bodily harm.
  • Whether the sentences were inadequate when assessed against the principle of totality (that is, whether the overall sentence adequately reflected the combined criminality).
  • Whether the non-parole periods set by the District Court were correctly calculated, in particular whether the sentencing judge applied special circumstances correctly.
  • What reduction, if any, should be applied on resentencing to reflect the principle of double jeopardy in a Crown appeal (the principle that an offender should not be resentenced to the full term the appellate court would otherwise impose, because being subjected to a second sentencing proceeding is itself a burden).

Decision

Newman AJ, with whom Sully J and Barr J agreed, found that the District Court had fallen into error at multiple levels. The maximum penalty for malicious wounding with intent to cause GBH under section 33 of the Crimes Act 1900 is 25 years. The sentencing judge had imposed concurrent head sentences of 6 years with non-parole periods of 2 years and 9 months on each count.

The Court held that both offences warranted sentences at the high end of the applicable range, for two independent reasons. First, the use of a handgun is one of the most serious aggravating features available for this type of offence, and the respondent offered no explanation at trial for having brought it to the cinema. Second, the injuries were grave, particularly those suffered by Mustafa Zikria. Newman AJ characterised the offence against Mustafa as falling into the worst category of cases, such that the maximum sentence warranted consideration.

The Court also found error in the calculation of the non-parole periods. A finding of special circumstances (which permits the sentencing court to depart from the standard non-parole proportion) should be applied consistently throughout the sentencing exercise, not repeated separately when fixing the non-parole period after it had already been factored into the head sentence. A non-parole period representing approximately 60 per cent of the head sentence was found to be appropriate, reflecting the respondent's first period of custody and consequent need for supervision on release.

Applying the double jeopardy principle, the Court reduced the sentences it would otherwise have imposed. The minimum sentences that should have been passed were 10 years for the offence against Ahmed and 12 years for the offence against Mustafa. After the double jeopardy discount, the Court substituted head sentences of 8 years and 10 years respectively, with corresponding non-parole periods.

Orders Made

  • Appeal upheld.
  • Sentences imposed by Coorey DCJ on 17 March 2003 quashed.
  • For the offence of malicious wounding with intent to cause GBH against Ahmed Marnosh Zikria: head sentence of 8 years commencing 5 June 2002 and expiring 4 June 2010, with a non-parole period of 4 years and 9 months commencing 5 June 2002 and expiring 4 March 2007.
  • For the offence of malicious wounding with intent to cause GBH against Mustafa Zikria: head sentence of 10 years commencing 5 June 2002 and expiring 4 June 2012, with a non-parole period of 6 years commencing 5 June 2002 and expiring 4 June 2008.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the use of a handgun in a malicious wounding offence is among the most serious aggravating factors available, capable of pushing a sentence toward the maximum end of the range even where mitigating circumstances exist.
  • Where injuries are so severe as to be life-threatening, and are inflicted with a firearm, the offending may be characterised as falling within the worst class of cases, requiring the sentencing court to consider the statutory maximum.
  • A finding of special circumstances justifying a reduced non-parole proportion should not be applied twice: it ought to be factored into the overall sentencing exercise once, not repeated as a separate step when quantifying the non-parole period.
  • Provocation or aggression by victims can reduce the appropriate sentence, but does not override the serious weight given to firearm use and life-threatening injuries.
  • In Crown appeals, the double jeopardy principle requires the appellate court to impose a sentence below what it would otherwise regard as the appropriate minimum, in recognition of the additional burden placed on the offender by a second sentencing proceeding.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(d)
- Crimes Act 1900 (NSW), ss 27, 33
- Crimes (Sentencing Procedure) Act (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Loh (2002) 127 A Crim R 577
- House v The King (1936) 55 CLR 409
- Dinsdale v The Queen (2000) 202 CLR 321
- Wong v The Queen (2001) 76 ALJR 79