Citation: Razzak v Regina [2008] NSWCCA 304
Court: NSW Court of Criminal Appeal
Date: 16 December 2008
Judges: Allsop P, Blanch J, Hall J
Background
The appellant stood trial in the District Court alongside two co-accused on multiple counts arising from a drive-by shooting incident in Mons Street, Condell Park on 8 May 2004. The prosecution alleged that occupants of a Toyota RAV4 fired weapons at a group of men outside a residential address, injuring at least one of them. The incident took place on a Saturday afternoon in a suburban street, with residents and bystanders in the vicinity.
The two co-accused were acquitted of all charges. The appellant, by contrast, was acquitted on the more serious "shoot with intent to murder" counts but convicted on four alternate counts of maliciously discharging a loaded firearm with intent to cause grievous bodily harm in company, and one count of firing a firearm in a public place. He received an effective total sentence of 13 years with a nine-year non-parole period.
The appellant appealed against all five convictions and the associated sentences, arguing that the verdicts on three of the firearm counts were unsafe and unreasonable, and raising grounds relating to jury deliberations, inconsistent verdicts, and the handling of evidence at trial.
Legal Issues
- Whether the convictions on counts 4, 6, and 8 (relating to victims Mohamed Douar, Bassim Said, and Rami Homsi) were unsafe and unreasonable verdicts that could not be supported by the evidence
- Whether the verdicts were inconsistent, given the acquittals of the two co-accused
- Whether the circumstantial evidence was sufficient to sustain those convictions
- Whether errors occurred in the conduct of the trial, including the grant of leave to cross-examine under s 38 of the Evidence Act 1995
- Whether the sentences imposed were manifestly excessive, having regard to the appellant's age, subjective circumstances, and the principle of totality
Decision
Blanch J, with whom Allsop P and Hall J agreed, allowed the appeal on counts 4, 6, and 8. The court found that the convictions on those three counts were unsafe and unreasonable and could not be sustained on the evidence. Verdicts of acquittal were entered in their place.
The convictions on count 2 (relating to the primary victim, MD) and count 9 (firing a firearm in a public place) were upheld. The court was satisfied the evidence supported those findings, and the appeal against conviction on those counts was dismissed.
On sentence, the court refused to disturb the penalties imposed for counts 2 and 9. The quashing of the three concurrent sentences did not, in the court's view, require any reduction to the remaining sentences under the totality principle, because the quashed sentences had run concurrently with the non-parole period. The court accepted that the sentencing judge had adequately considered the appellant's subjective circumstances, including his age of 20 at the time of the offences, his time in pre-sentence custody, his family background, and the psychologist's report tendered on his behalf.
Allsop P added remarks of his own on sentence, emphasising that the offences represented a deliberate and dangerous attack in a suburban street that put innocent residents at risk. His Honour noted that the remaining sentences were not at the outer limit of severity and remained within the range that legitimately reflected the seriousness of the confirmed offending.
Orders Made
- The appeal against conviction on counts 4, 6, and 8 was allowed; those convictions and sentences were quashed and verdicts of acquittal entered.
- The appeal against conviction on counts 2 and 9 was dismissed and the convictions confirmed.
- Leave to appeal against sentence on counts 2 and 9 was granted but the sentence appeal was dismissed.
Key Takeaways
- The Court of Criminal Appeal quashed three of five firearm convictions as unsafe and unreasonable, while confirming the remaining two, illustrating that a partial conviction appeal can succeed on some counts while failing on others within the same incident.
- Acquittals of co-accused do not automatically render a remaining accused's conviction inconsistent or unsafe; the court assessed each count individually against the evidence.
- Where concurrent sentences are quashed, the totality principle does not necessarily require a reduction in the surviving sentences, particularly where the quashed terms ran within the non-parole period of the major sentence.
- Subjective circumstances, including youth, pre-sentence custody, and a favourable psychologist's report, were found to have been adequately weighed by the sentencing judge even where they did not produce a reduction in penalty.
- Deliberate firearm violence in residential streets, endangering bystanders, attracted firm condemnation from the Court of Criminal Appeal as warranting sentences that reflect both specific and general deterrence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 29, 33A(1), 33A(2), 93G(1)(b)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 6(3)
- Evidence Act 1995 (NSW), ss 38, 60, 66, 135, 137, 192
Cases:
- Adam v The Queen (2001) 207 CLR 96
- Black v R (1993-1994) 179 CLR 44
- Blewitt v The Queen (1988) 62 ALJR 503
- Hargan v The Queen (1919) 27 CLR 13
- Knight v The Queen (1992) 175 CLR 495
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Parker v R (1962-1963) 111 CLR 610
- R v de Simoni (1981) 147 CLR 383
- R v Esposito (1998) 45 NSWLR 442
- R v Le (2002) 54 NSWLR 474
- R v Micallef (2003) 136 A Crim R 127
- R v Mundine [2008] NSWCCA 55
- R v Parkes (2003) 147 A Crim R 450
- R(Cth) v Petroulias (No 29) [2007] NSWSC 1005
- R v Ronen [2004] NSWSC 1298
- R v Stokes and Difford (1990) 51 A Crim R 25
- Ratten v The Queen (1974) 131 CLR 516
- Weiss v The Queen (2005) 224 CLR 300
- Whitehorn v The Queen (1983) 152 CLR 657