AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 12 May 2005

R v DO

[2005] NSWCCA 183

Assault & violenceFirearms & weapons

Citation: R v DO [2005] NSWCCA 183
Court: New South Wales Court of Criminal Appeal
Date: 12 May 2005
Judge(s): Hunt AJA, Hulme J, Johnson J

Background

The respondent, a young man with no prior criminal history, was involved in an incident outside a Surry Hills nightclub in the early hours of 17 April 2004. After being ejected from the venue, he returned with a .22 calibre semi-automatic pistol fitted with a silencer and laser sight, confronted security staff, and discharged the weapon twice. A security officer, Mr Black, was struck in the leg, suffering a fractured femur and vascular injury.

The respondent pleaded guilty in the District Court to maliciously inflicting grievous bodily harm in company (under s 35(2) of the Crimes Act) and to using a firearm without authorisation (under s 7(1) of the Firearms Act 1996). At sentencing, the respondent gave evidence that he had consumed approximately fifteen schooners and six tequilas that night and had no recollection of the events.

District Court Judge Tupman sentenced the respondent to 2.5 years imprisonment with an 18-month non-parole period for the grievous bodily harm offence, and a concurrent fixed term of 12 months for the firearms offence. The Crown appealed on the basis that the overall sentence was manifestly inadequate.

  • Whether the sentences imposed by Judge Tupman were manifestly inadequate, having regard to the objective seriousness of the offences individually and cumulatively
  • Whether the sentencing judge erred in finding that authority precluded her from concluding that the respondent had acted with intent rather than recklessness
  • What weight should be given to the respondent's subjective case (youth, lack of prior record, early guilty plea, remorse, and intoxication) when balanced against the objective gravity of the conduct
  • The appropriate resentencing, taking into account the element of double jeopardy inherent in a Crown appeal

Decision

The Court of Criminal Appeal, with Hulme J delivering the principal judgment (Hunt AJA and Johnson J agreeing), allowed the appeal and held that both the individual sentence for grievous bodily harm and the overall sentencing outcome were manifestly inadequate.

Hulme J found that the sentencing judge had made an error in treating herself as bound by authority to characterise the respondent's conduct as reckless rather than intentional. The respondent had retained sufficient presence of mind to wrap the firearm in a towel to conceal it, to confront security staff with a deliberate demand, and to differentially aim the weapon at two separate individuals. That conduct was inconsistent with a finding of pure recklessness.

The Court acknowledged the strength of the respondent's subjective case, including his youth (21 at the time of the offence), absence of prior criminal record, early guilty plea (attracting a discount of approximately 25 to 30 percent), genuine remorse, and good prospects of rehabilitation. However, Hulme J emphasised that the gravity of the objective conduct, particularly the use of a loaded and modified firearm to threaten and wound security officers in a public setting, required that considerations of general deterrence and retribution be given substantial weight.

Taking into account the double jeopardy element that applies in Crown appeals (meaning a court resentencing on appeal imposes a somewhat lesser sentence than it might otherwise), the Court resentenced the respondent on the grievous bodily harm charge to a total of 4 years imprisonment, comprising a non-parole period of 2.5 years and a balance of term of 18 months. The concurrent firearms sentence was confirmed.

Orders Made

  • The Crown appeal was allowed
  • The sentence imposed by Judge Tupman for maliciously inflicting grievous bodily harm was quashed
  • In lieu thereof, the respondent was sentenced to imprisonment with a non-parole period of 2 years and 6 months commencing 17 April 2004 and a balance of term of 18 months commencing 17 October 2006, totalling 4 years imprisonment
  • The concurrent 12-month fixed term for the firearms offence was confirmed
  • The earliest eligible parole date was recorded as 17 October 2006

Key Takeaways

  • A sentencing court is not automatically precluded from finding intention rather than recklessness where the offender's conduct, despite intoxication, demonstrates purposeful and differentiated acts during the relevant events
  • Manifestly inadequate sentences will attract appellate intervention even where the offender presents a strong subjective case, particularly where the objective circumstances involve armed violence causing serious injury in a public place
  • Under the principles applicable to Crown appeals, the Court of Criminal Appeal confirmed that double jeopardy operates as a moderating factor on resentencing, but does not preclude a substantial upward revision where the original sentence falls well below an acceptable range
  • The factors listed in s 21A of the Crimes (Sentencing Procedure) Act, including use of a weapon, substantial harm caused, disregard for public safety, and the vulnerability of a victim by reason of occupation, were relevant aggravating considerations in assessing the overall sentence
  • General deterrence and retribution carry significant weight in sentencing for offences involving the deliberate use of a loaded firearm against individuals performing a lawful function, even where the offender is unlikely to reoffend

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2) (maliciously inflict grievous bodily harm in company)
- Firearms Act 1996 (NSW), s 7(1) (use firearm without authorisation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors)

Cases:
- R v Doorey [2000] NSWCCA 456