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Court of Criminal Appeal 5 April 2007

HAIDAR v R

[2007] NSWCCA 95

Firearms & weapons

Citation: HAIDAR v R [2007] NSWCCA 95
Court: New South Wales Court of Criminal Appeal
Date: 5 April 2007
Judges: McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant was a licensed security guard who, in the early hours of 14 February 2005, fired a .45 Glock semi-automatic pistol at a man who had walked away from a fight outside a party. The shot was fired from the middle of a public street, aimed in the direction of the victim who was approximately 70 metres away. The appellant did not intend to hit the victim but intended to frighten him by firing close by.

The appellant pleaded guilty on the morning his trial was due to commence and received a 10% discount on sentence. In May 2006, Judge Sorby in the District Court sentenced him to a non-parole period of 18 months, with a further 12 months on parole. The maximum penalty for the offence under section 93G of the Crimes Act was 10 years imprisonment.

On appeal, the appellant argued the sentencing judge had overstated the objective seriousness of the offence and had failed to give proper weight to his cognitive limitations, which were documented in psychiatric and psychological reports tendered at sentencing.

  • Whether the sentencing judge incorrectly elevated the objective seriousness of the offence by characterising it as involving "significant disregard for public safety" and as a shooting "at" the victim.
  • Whether the sentencing judge failed to properly account for the appellant's below-average cognitive functioning, impulse control, and information processing when assessing the weight to be given to general deterrence.
  • Whether, taking all factors together, a lesser sentence was warranted in law under section 6(3) of the Criminal Appeal Act.

Decision

The Court, by majority (McClellan CJ at CL and Hislop J), granted leave to appeal but dismissed the appeal, leaving the original sentence undisturbed. Hulme J, in dissent on the outcome, would have allowed the appeal and reduced the non-parole period to 12 months.

On the question of cognitive impairment, McClellan CJ at CL acknowledged the principle, explained in R v Henry, that a mental disorder or abnormality may reduce the weight given to general deterrence where it diminishes a person's appreciation of wrongfulness. However, his Honour found that principle did not assist the appellant here. A person does not need high cognitive functioning to understand that firing a weapon in a public street at night, without any threat to personal safety and merely to frighten another, is seriously wrongful. The appellant had worked competently as a security guard for five years, a role that necessarily involved judgments about when firearm use was appropriate.

McClellan CJ at CL also observed that the apparent absence of strong animosity between the appellant and the victim did not mitigate the offence. Rather, it heightened its gravity by underscoring how casually the firearm had been discharged. His Honour emphasised the need for sentences in firearms cases to deter all persons who carry weapons, whether lawfully or otherwise, from any illegitimate use.

Hulme J reached a different conclusion, taking the view that the appellant's mental condition and the consequential loss of his firearms licence and security employment had not been properly weighed by the sentencing judge. His Honour considered those factors warranted some reduction in sentence, proposing a non-parole period of 12 months. However, this view did not carry the majority.

Orders Made

  • Leave to appeal granted (by majority).
  • Appeal dismissed (by majority).

Key Takeaways

  • Below-average cognitive functioning does not automatically warrant a more lenient sentence. The Court of Criminal Appeal confirmed that the relevant question is whether the impairment diminished the offender's appreciation of the wrongfulness of the specific act, not simply whether the offender falls below average in reasoning or impulse control.
  • The principle from R v Henry, that mental disorder may reduce the weight given to general deterrence, requires a close connection between the impairment and the particular offence. A general finding of below-average cognitive ability is insufficient without more.
  • Where an offender's employment demonstrates a practical capacity to make sound judgments, including about when firearm use is appropriate, that evidence can inform the sentencing court's assessment of how far cognitive limitations actually affected culpability.
  • Discharging a firearm in a public place without any legitimate justification engaged strong considerations of general deterrence, even where no injury resulted and the offender did not intend to strike the victim.
  • A late guilty plea, entered on the morning of trial, attracted only a modest discount of 10%, reflecting the limited utilitarian value of such a plea.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), section 93G (firing a firearm in or near a public place, or in a manner likely to endanger safety)
- Criminal Appeal Act 1912 (NSW), section 6(3)

Cases:
- R v Henry (1999) 46 NSWLR 346 (Wood CJ at CL, on mental disorder and general deterrence)
- R v Cicekdag (cited by Hulme J in comparative sentence analysis)
- R v Cahill (cited by Hulme J in comparative sentence analysis)