Citation: Regina v Robert Andrew Livingstone [2004] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 30 April 2004
Judges: Sully J, Dowd J, Smart AJ
Background
The appellant and his neighbour had been near neighbours in rural New South Wales for several years. Their relationship had deteriorated badly by early 2002. The complainant gave evidence of threatening phone calls from the appellant, including one in which the appellant allegedly said he intended to kill the complainant, and of repeated interference with the padlock on his property gate.
On 2 March 2002, the appellant fired a .22 calibre rifle into the complainant's dwelling house. He pleaded guilty to that offence (Count 1). Six days later, on 8 March 2002, further shots were fired. The complainant was climbing a ladder to the roof of his home when four shots struck the iron roofing about a metre to a metre and a half in front of him, and he identified the appellant as the shooter standing approximately one hundred metres away.
The appellant was tried in the Lismore District Court before Acting Judge Ducker and a jury. He was convicted by the jury on Count 2, which charged malicious discharge of a firearm with intent to do grievous bodily harm, an offence under section 33A(1) of the Crimes Act 1900 carrying a maximum of 14 years imprisonment. He was sentenced to a total of 8 years imprisonment with a non-parole period of 5 years. He appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge misdirected the jury on the elements of Count 2, specifically the intent required for the offence
- Whether the trial judge erred in failing to direct the jury that a conversation between the complainant and his brother could not be used as proof of a fact in issue
- Whether the trial judge erred in directing the jury on the use of the appellant's account of his actions on 2 March 2002
- Whether the conviction on Count 2 was unreasonable in all the circumstances
- Whether the sentencing judge made an error of fact in relation to Count 1
- Whether the sentencing judge applied an incorrect discount for the guilty plea on Count 1
Decision
The Court of Criminal Appeal upheld the conviction appeal in part. The court found the trial judge's directions on the elements of Count 2 were deficient. Rather than ordering a retrial, the court substituted a verdict of guilty on Count 3, the alternative count of firing a rifle into an occupied dwelling house under section 93H(2) of the Crimes Act 1900. That offence carries a maximum of 10 years imprisonment.
On the substituted verdict, the court imposed a fresh sentence of 4 and a half years imprisonment, to commence after the sentence on Count 1 had run for a period. The cumulative structure of the overall sentence was adjusted to reflect the lesser offence on which the appellant now stood convicted, producing an aggregate head sentence of 6 and a half years.
On the sentence appeal relating to Count 1, the court granted leave to appeal but dismissed the appeal. The appellant argued that the sentencing judge made an error of fact by finding that one of the shots fired on 2 March struck the outside wall of the complainant's bedroom at approximately head height. Smart AJ, with whom the other judges agreed, noted that inferences drawn from the evidence supported this finding. Even if there were some uncertainty as to which incident produced that particular shot, Smart AJ held that a sentence of 4 years for firing into an occupied dwelling was correct and should not be disturbed. The submission that aiming shots toward the roof rather than directly at an occupant significantly reduced the offender's criminality was rejected, though acknowledged as a factor in the overall assessment.
Orders Made
- The verdict of guilty on Count 2 (malicious discharge with intent to cause grievous bodily harm) was set aside, and a verdict of guilty of the alternative offence on Count 3 (firing a rifle into a dwelling house) was substituted.
- On the substituted verdict, the appellant was sentenced to imprisonment for 4 and a half years, commencing 11 June 2005 and expiring 10 December 2009, with a non-parole period of 2 and a half years commencing 11 June 2005 and expiring 10 December 2007.
- Leave to appeal against sentence on Count 1 was granted, but that appeal was dismissed.
- The aggregate effect of all sentences was a head sentence of 6 and a half years commencing 11 June 2003 and expiring 10 December 2009, with a non-parole period of 4 and a half years commencing 11 June 2003 and expiring 10 December 2007.
Key Takeaways
- Where a jury returns a verdict on a more serious charge but the directions on that charge were deficient, the Court of Criminal Appeal may substitute a verdict on a lesser alternative count rather than ordering a retrial.
- Firing a firearm into an occupied dwelling house is treated as a serious offence carrying significant custodial consequences, even where no occupant is directly struck.
- The fact that shots were aimed at parts of a structure rather than directly at a person reduces, but does not eliminate, the criminality involved and does not by itself warrant a marked reduction in sentence.
- Sentencing judges are entitled to draw inferences from the evidence about where shots struck and the circumstances of an offence, provided those inferences are reasonably available on the materials before them.
- In dismissing the sentence appeal for Count 1, the Court of Criminal Appeal confirmed that a four-year term for discharging a firearm into an occupied dwelling is within the appropriate range where the occupant's safety was placed at genuine risk.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), sections 33A(1) and 93H(2)
- Criminal Appeal Act 1912
Cases
- Reg v Coleman (1990) 19 NSWLR 467
- Reg v Safwan (1987) 8 NSWLR 97
- Reg v McKnoulty (1995) 77 A Crim R 333
- Reg v Whittaker (1993) 68 A Crim R 476
- M v The Queen (1994) 181 CLR 487
- Spies v The Queen (2000) 201 CLR 603
- C (1994) 75 A Crim R 329