Citation: Regina v Michael Kanaan [2006] NSWSC 539
Court: Supreme Court of New South Wales
Date: 31 May 2006
Judge(s): Latham J
Background
In the early hours of 22 December 1998, two police officers pursued several men on foot into a sports ground in Paddington after following their vehicle into a dead-end street. The offender, a rear seat passenger in the vehicle, had armed himself with a pistol earlier that evening. While other occupants either fled or were subdued, the offender stopped and turned to confront the pursuing officers.
The offender fired directly at Constable Patrech, who was perched at the top of a cyclone wire fence and had not drawn his own weapon. Patrech was shot in the thigh and wrist, and sustained a fractured ankle when he jumped from the fence. The offender then exchanged fire with Constable Fotopoulos, continuing to shoot even after being struck by return fire in both legs, the buttocks, and the wrist.
A jury convicted the offender on 29 May 2006 of two counts of maliciously discharging a firearm with intent to cause grievous bodily harm and one count of discharging a firearm with intent to prevent lawful apprehension. Each offence carried a maximum penalty of 14 years imprisonment under section 33A of the Crimes Act 1900. The matter before Latham J was sentencing.
Legal Issues
- What sentences were appropriate for three serious firearms offences committed against police officers?
- How should the sentences for the three counts be structured, given that there were two complainants but the offences arose from a single episode?
- What weight should be given to the significant delay between the commission of the offences (December 1998) and the sentencing hearing (May 2006)?
- What relevance did the offender's other serious criminal conduct, occurring around the same period, have to the sentencing exercise?
Decision
Latham J identified count two (discharging a firearm at Constable Patrech) as the most objectively serious of the three offences. The offender had a clear path of escape and chose instead to stop, turn, and shoot at an officer who was in a vulnerable position on a fence and had made no attempt to draw his weapon. The offender continued firing even after Patrech began to retreat and no longer posed any threat.
The conduct directed at Constable Fotopoulos (counts five and six) was also characterised as objectively grave. Latham J described the exchange of fire as a deliberate, sustained attack with the characteristics of a "shoot out" in a residential neighbourhood, representing a serious threat to public safety and public order.
Her Honour noted that the offender, at the time of these offences, was already subject to a two-year good behaviour recognisance, which was an aggravating factor. Although she was required to disregard the offender's other unrelated criminal conduct in the months surrounding these offences for sentencing purposes, she observed that the offender was neither inexperienced with nor reluctant to use firearms. The delay of approximately seven and a half years between the offences and sentencing was acknowledged as a mitigating consideration warranting some leniency, though it did not displace the objective gravity of the offences.
On sentence structure, Latham J declined to impose wholly concurrent sentences given that there were two separate victims. However, she ordered count six to run concurrently with count five, as the two did not represent distinct forms of criminality. Count two was ordered to commence from a later date, running partly consecutive to counts five and six.
Orders Made
- Count 5: 8 years imprisonment from 30 March 2006, non-parole period of 5 years expiring 29 March 2011
- Count 6: 7 years imprisonment from 30 March 2006 (concurrent with Count 5), non-parole period of 4 years expiring 29 March 2010
- Count 2: 10 years imprisonment from 30 March 2008 (partly consecutive), non-parole period of 5 years from 30 March 2008 expiring 29 March 2013
- Aggregate non-parole period expires 29 March 2013
- Sentences reflect 61 days of custody solely referable to these offences
Key Takeaways
- Shooting at a police officer who had not drawn a weapon and was in a physically vulnerable position, and continuing to fire after that officer retreated, was treated by the Supreme Court as the most objectively serious of the three offences for sentencing purposes.
- Where multiple firearms offences arise from a single episode but involve two separate victims, wholly concurrent sentences may be inappropriate, even if some counts are properly made concurrent with each other.
- Significant delay between the commission of offences and sentencing (here, approximately seven and a half years) can attract a degree of leniency, though the objective gravity of the offences remains a central consideration.
- Being subject to an existing good behaviour recognisance at the time of the offending constituted an aggravating factor in the sentencing exercise.
- Deliberate, sustained gunfire directed at police officers in a residential area was characterised as representing a threat to public safety and public order of the highest order, warranting substantial custodial terms.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 33A (maliciously discharging a firearm with intent)
- Crimes Act 1900 (NSW), s 556A (now repealed, good behaviour recognisance)
Cases
- Kanaan & Ors v Regina (2006) NSW CCA 109
- Regina v Kanaan (2005) NSW CCA 385