Citation: R v Ingvarsson, Ingi and Dhillon, Khushwant [2008] NSWDC 142
Court: District Court of New South Wales
Date: 18 April 2008
Judge(s): Nicholson SC DCJ
Background
Two men, referred to here as the first offender and the second offender, were sentenced following their respective roles in a firearms incident in Ross Street, Parramatta, on the night of 12 April 2007. Both men were patrons of the Royal Oak Hotel when a group of unknown males entered the premises. CCTV footage from the hotel captured the confrontation that followed.
The second offender initially confronted the unknown group while holding a Norinco 9mm self-loading pistol, causing those men to leave via Ross Street. The first offender then obtained a Colt .45 calibre self-loading pistol and followed them outside, where both men discharged their respective firearms in a westerly direction along a public street. Police officers on a meal break at a nearby McDonald's heard the shots and responded. One officer observed the first offender walking past with the Colt pistol tucked into the front of his pants.
Both men were subsequently arrested during a vehicle stop. Each pleaded guilty to possession of a prohibited weapon (an unregistered pistol held without licence or permit) and to discharging a firearm with disregard for the safety of others. The sentencing proceedings also dealt with additional matters on a Form 1 for each offender.
Legal Issues
- What was the appropriate objective assessment of seriousness for the offences of possessing a prohibited firearm and discharging a firearm with disregard for public safety?
- What weight should be given to subjective factors, including the provocation arising from the circumstances at the hotel?
- Whether special circumstances existed to justify departing from the standard non-parole period ratio.
- How sentences should be structured, including the degree of accumulation between the two offences.
- What discount was appropriate to reflect the guilty pleas?
Decision
Nicholson SC DCJ assessed the objective criminality of both offences as falling in the mid-range of seriousness. The firearms were discharged in a busy public street at night, near a McDonald's restaurant where police were present, with parked vehicles and other people nearby. The court found that while the context of the incident included some provocation (the offenders had previously been assaulted by gang-type groups, and the unknown males had entered what the offenders regarded as their regular hotel), this did not diminish the objective gravity of firing loaded weapons in a public area.
His Honour identified the guilty pleas as warranting a 25 percent discount on each sentence. For the possession offence, the court indicated that the sentence before discount would have been set at a higher level. For the firearm discharge offence, the court would have imposed four years before the plea discount, reducing the overall sentence to three years.
The court found special circumstances justifying an extended parole period beyond the standard ratio, principally on account of the provocation element and the rehabilitative considerations particular to both offenders. The two sentences were made partly cumulative, with the second sentence commencing six months after the first, to reflect the separate criminality of each offence while also avoiding a crushing overall penalty.
Orders Made
For each offender:
- Possession of a prohibited weapon: Term of imprisonment of two years, commencing 12 April 2007, with a non-parole period of two years expiring 11 April 2009, and a balance of term of two years expiring 11 April 2011 (parole to be determined by the Parole Board).
- Discharging a firearm with disregard for the safety of others: Minimum term of two years commencing 12 October 2007 (accumulation of six months), expiring 11 October 2009, with a balance of term of one year expiring 11 October 2010; release to parole ordered on 11 October 2009.
- Overall non-parole period of two and a half years.
Key Takeaways
- The District Court treated the discharge of loaded firearms along a public street at night, in close proximity to bystanders and police, as falling in the mid-range of objective seriousness, even where some level of provocation existed on the part of those who entered the offenders' venue.
- A guilty plea attracted a 25 percent discount, directly reducing what would otherwise have been a four-year sentence for the firearm discharge offence to an overall three-year term.
- Special circumstances were found to exist based on the provocation arising from the prior gang-related history of the offenders and the circumstances of the confrontation at the hotel, justifying a longer parole period relative to the minimum term.
- Partial accumulation of sentences, rather than full concurrency or full accumulation, reflected the principle that each separate offence must be recognised while avoiding a disproportionately severe total sentence.
- Under the agreed facts procedure, the sentencing judge confirmed that the court retains an independent fact-finding function and is not bound by the agreement reached between the parties, particularly where additional material is tendered.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Firearms Act 1996 (NSW)
- Crimes Act 1900 (NSW), s 93G
Cases:
- R v Rushby [1977] NSWLR 597
- R v Cuthbert [1967] 2 NSWR 329
- R v Hayes [1984] 1 NSWLR 740