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Court of Criminal Appeal 10 October 2007

RICKABY v REGINA

[2007] NSWCCA 288

Firearms & weaponsPublic order & justice offences
SENTENCING TWO OFFENCES FIRING FIREARM IN PUBLIC PLACE POSSESSION OF UNREGISTERED FIREARM CONCURRENCY AND ACCUMULATION TOTALITY PRINCIPLE

Citation: Rickaby v Regina [2007] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 10 October 2007
Judge(s): Giles JA, Hulme J, Hislop J

Background

The appellant pleaded guilty in the District Court to two offences arising from an incident in Kings Cross in the early hours of 22 October 2005. He had produced an unregistered .22 calibre pistol outside a nightclub after being refused entry, fired it three times into the air, and then advanced toward security officers while still holding the weapon. The charges were firing a firearm in a public place and possessing an unregistered firearm in circumstances of aggravation (the firearm was a pistol). Two further offences involving intimidation were placed on a Form 1 to be taken into account on sentencing.

The sentencing judge imposed partially accumulated sentences. The sentence for the firing offence commenced on 22 October 2005, with a non-parole period of one year and ten months. The sentence for the possession offence commenced one year later, with a non-parole period of two years and four months. This produced an overall non-parole period of three years and four months and an overall head sentence of four years and six months.

The appellant did not challenge the individual sentences as excessive. His appeal targeted only the partial accumulation, arguing that it failed to account for the common features of the two offences and violated the totality principle.

  • Whether the sentencing judge erred by partially accumulating the sentences without adequate regard to the common elements shared by the two offences.
  • Whether the partial accumulation was contrary to the totality principle, given the offences arose from a single episode lasting only a few minutes.

Decision

The Court of Criminal Appeal dismissed the appeal. Giles JA, with whom Hulme J and Hislop J agreed, held that the two offences were legally and factually distinct, even though they arose from the same episode. Possessing an unregistered firearm does not require firing it, and firing a firearm does not require it to be unregistered. Each offence involved a separate element not present in the other.

Giles JA rejected the appellant's characterisation of the offences as forming a single course of conduct with shared elements. The fact that events unfold simultaneously or in quick succession does not, of itself, compel concurrent sentences. The firing of the weapon three times, in the vicinity of high-rise apartment blocks and with apparent disregard for public safety, constituted a significant additional offence beyond mere possession.

The Court also noted that the sentence for the possession offence already incorporated the Form 1 intimidation offences, which added to the overall criminality. The partial accumulation properly reflected the total criminal conduct. No error was established in the exercise of the sentencing discretion.

Orders Made

  • Time for filing the application for leave to appeal extended to 30 May 2007.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in partially accumulating sentences for two offences arising from the same incident, where each offence contained elements distinct from the other.
  • Simultaneous commission of offences does not automatically require concurrent sentences; the relevant inquiry is whether the offences are truly distinct and separate.
  • The totality principle requires consideration of overall criminality, but does not mandate concurrency merely because offences occurred within the same brief episode.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that possessing an unregistered firearm and firing a firearm in a public place are sufficiently distinct offences to justify partial accumulation: one could possess without firing, and one could fire a registered weapon without committing the possession offence.
  • Absence of submissions on accumulation and totality at the sentencing hearing placed the sentencing judge in a position of exercising discretion without assistance; the Court found that discretion was properly exercised.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), s 4C

Cases:
- R v Hammoud (2000) 118 A Crim R 66
- R v Cicekdag (2004) 158 A Crim R 299