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Court of Criminal Appeal 14 April 2005

Regina v Barakat

[2005] NSWCCA 143

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW AND PROCEDURE DISCHARGE FIREARM IN PUBLIC PLACE SENTENCE MANIFEST INADEQUACY LIMITED REALISTIC SENTENCING OPTION DISCRETION EXERCISED TO DISMISS APPEAL

Citation: Regina v Barakat [2005] NSWCCA 143
Court: New South Wales Court of Criminal Appeal
Date: 14 April 2005
Judge(s): Wood CJ at CL, Grove J, Hoeben J

Background

The respondent pleaded guilty in the District Court to a single charge of discharging a firearm in a public place, contrary to section 93G(1)(b) of the Crimes Act 1900, which carries a maximum penalty of ten years imprisonment. The charge arose from an incident in October 2000, when an armed relative arrived at the respondent's home making death threats, began breaking down the front door, and appeared to be reaching for a rifle. The respondent fired four shots into the air to frighten the intruder away, which proved effective.

Although police were called at the time, the respondent was neither arrested nor charged with the firearm offence until February 2003, more than two years later. By that time, he had been separately convicted of drug supply offences and was serving a four-year sentence with a three-year non-parole period commencing May 2002, with parole eligibility due in May 2005.

The sentencing judge in the District Court, Andrew ADCJ, characterised the firearm offence as sitting at the very low end of the scale, and imposed a six-month good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999, commencing 28 January 2005. The Crown appealed, submitting the sentence was manifestly inadequate.

  • Whether the six-month good behaviour bond was manifestly inadequate for an offence of discharging a firearm in a public place
  • Whether a suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999 was a lawful sentencing option given the respondent's existing custodial sentence
  • Whether, even if the sentence was manifestly inadequate, the Court of Criminal Appeal should exercise its residual discretion to dismiss the Crown appeal in light of the very unusual circumstances

Decision

The Court accepted the Crown's primary contention: a six-month good behaviour bond running largely concurrently with an existing custodial sentence amounted to virtually no punishment at all, and was therefore manifestly inadequate. Grove J noted that, despite the favourable findings available to the sentencing judge (including the early guilty plea, the availability of Local Court disposition, the objective seriousness being at the low end, and the genuine threat posed by the armed intruder), the sentence fell short of what was required.

However, the Crown's preferred remedy at first instance, a suspended sentence, was not legally available. Section 12(2) of the Crimes (Sentencing Procedure) Act 1999 prohibits the suspension of a sentence where an offender is already subject to another sentence of imprisonment, including during both the non-parole and parole periods. This was confirmed in R v Edigarov (2001) 125 A Crim R 551. The Crown had incorrectly submitted at first instance that suspension was appropriate, and did not press for it on appeal.

The Court also rejected the alternative of imposing a longer good behaviour bond that would extend beyond the respondent's anticipated parole period. Grove J considered it inappropriate to effectively extend the burden of this stale offence beyond the respondent's existing sentence, which was itself subject to parole conditions until May 2006.

Faced with no realistic alternative sentencing option that would be proportionate and lawful, the Court exercised its residual discretion to dismiss the Crown appeal, notwithstanding the finding of manifest inadequacy. This outcome was expressly tied to the convergence of several unusual factors: the unexplained multi-year delay in charging, the imminent parole eligibility date, and the statutory barriers to available sentencing forms.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A sentence that imposes virtually no punishment, even if technically within power, may still be found manifestly inadequate on a Crown appeal.
  • Under section 12(2) of the Crimes (Sentencing Procedure) Act 1999, a suspended sentence cannot be imposed on an offender who is already subject to another sentence of imprisonment, a prohibition that extends across both the parole and non-parole periods of that existing sentence, as confirmed in R v Edigarov.
  • In dismissing the appeal, the Court of Criminal Appeal exercised its residual discretion on the basis that no proportionate, lawful, and fair sentencing option remained available, and that to impose any further order would be unjust in the circumstances.
  • Substantial unexplained delay in preferring criminal charges is a relevant sentencing consideration, and may affect what orders remain appropriate even where an offence is otherwise serious.
  • The combination of factors required to enliven the residual discretion to dismiss a Crown appeal despite manifest inadequacy was characterised as "very unusual," indicating the discretion is not routinely available.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93G(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 47

Cases:
- R v Edigarov (2001) 125 A Crim R 551