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Court of Criminal Appeal 25 November 2008

CARNEY v REGINA

[2008] NSWCCA 277

Traffic & drivingFirearms & weapons
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY OF SENTENCE BALANCED BY OTHER MATTERS SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Carney v Regina [2008] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 25 November 2008
Judges: Bell JA, Blanch J, Hall J

Background

The applicant pleaded guilty in the District Court to three firearm offences arising from events on 26 December 2006. After being observed speeding on the M2 Motorway, he fled police at high speed, drove dangerously, and ultimately stopped near a bus shelter at Miller. He then retrieved a rifle from his vehicle and fired multiple rounds toward pursuing police officers, striking a patrol car. He also directed fire toward a police helicopter. Passengers on a nearby bus remained trapped until police evacuated them through an emergency window. The standoff ended after telephone contact involving the applicant's brother, and he was arrested without further incident.

At sentencing, psychiatric evidence established that the applicant had been suffering a paranoid mood state at the time of the offences, exacerbated by alcohol consumption. The sentencing judge in the District Court imposed an effective sentence of six years, comprising a non-parole period of three years and six months and a balance of term of two years and six months. The applicant sought leave to appeal on the grounds that the sentence was too severe.

  • Whether the sentencing judge erred in assessing the offending as near the worst category of case
  • Whether the sentencing judge erred in finding that general deterrence was only marginally reduced by the applicant's mental illness
  • Whether the sentence was manifestly excessive in all the circumstances
  • Whether the sentencing judge properly treated the applicant's mental illness in the sentencing exercise

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, upholding the sentences imposed in the District Court. Hall J, with whom Bell JA and Blanch J agreed, delivered the substantive judgment.

On the question of objective seriousness, the Court accepted that describing the offending as near the worst category was open to the sentencing judge. The applicant fired multiple rounds at police in a residential area, creating a real risk of harm to bystanders, reloaded during the exchange, and fired toward a helicopter. These features collectively supported a high objective assessment.

Regarding general deterrence, the Court acknowledged that established principle requires this sentencing purpose to be moderated where an offender was suffering from a significant mental illness at the time of the offence. On the facts, the sentencing judge had not fully applied that moderation. However, the Court found this error was counter-balanced by the weight properly given to other sentencing considerations, in particular specific deterrence. Because the applicant retained some awareness that his conduct was wrong, specific deterrence remained a live issue and carried particular importance in reinforcing adherence to a prescribed medication regime.

The Court concluded that the overall sentence was proportionate to the criminality involved and represented a proper exercise of the sentencing discretion. No lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where an offender was suffering mental illness at the time of offending, general deterrence must be moderated as a sentencing consideration, but that reduction can be counter-balanced by the weight of other factors such as specific deterrence and objective seriousness.
  • A partial impairment of judgment from a psychotic episode does not eliminate specific deterrence as a relevant sentencing purpose, particularly where the offender retained some awareness that their conduct was wrong.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a single aspect of error in the sentencing process will not necessarily warrant intervention if the overall sentence remains within a proper exercise of discretion.
  • The objective gravity of firearm offences involving repeated discharge toward police in a residential area, with risk of harm to bystanders, can properly support an assessment near the worst category of the offence type.
  • Specific deterrence in cases involving mental illness may serve a distinct purpose: reinforcing to the offender that compliance with a medication regime is essential to reduce the risk of future offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33A(1) (discharging firearm with intent to prevent lawful apprehension)
- Firearms Act 1996 (NSW), s 7A(1) (unauthorised use of a firearm), s 36(1) (unauthorised possession), s 65(3) (possessing ammunition)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Courtney v Regina [2007] NSWCCA 195; (2007) 172 A Crim R 371
- Regina v Anderson [1981] VR 155; (1980) 2 A Crim R 379
- Regina v Champion (1992) 64 A Crim R 244
- Regina v Engert (1995) 84 A Crim R 67
- Regina v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Regina v Israil [2002] NSWCCA 255
- Regina v Kilmartin (1989) 41 A Crim R 22
- Regina v Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333
- Regina v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445
- Regina v Mulato [2006] NSWCCA 282
- Regina v Pitt [2005] NSWCCA 304
- Regina v Scognamiglio (1991) 56 A Crim R 81
- The Queen v Verdins [2007] VSCA 102